Tentative Book Title: Citizenship Ends: The Reconstruction Constitution in the Age of Empire

Sam Erman

Tentative Book Table of Contents

Ch. 1: Introduction

Ch. 2: Santiago Iglesias, Federico Degetau, and Domingo Collazo Seek to Keep the Latter-Nineteenth-Century Spanish Empire at Bay in the Antilles Ch. 3: Reconstruction and the Abandonment of Expansion: U.S. Constitutional Meaning between Dred Scott and the Spanish-American War

Ch. 4: Constitutional Storm Rising: U.S. Expansion Resumes, 1898-1900

Ch. 5: “We Are Naturally Americans”: Federico Degetau Seeks U.S. Citizenship Without Filing Suit, 1900-1902

Ch. 6: “American Aliens”: Isabel Gonzalez, Domingo Collazo, Federico Degetau, and the Supreme Court, 1902-1905

Ch. 7: Reconstructing Puerto Rico, 1906-1909

Ch. 8: Citizenship Lost, Citizenship Found: Santiago Iglesias’s Long Path to Collective Naturalization, 1909-1917

Ch. 9: Citizenship Ends: Recognition of the Imperial Constitution and Insitutionalization of Status Ambiguity, 1918-1925

Ch. 10: Conclusion

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Ch. 5: “We Are Naturally Americans”: Federico Degetau Seeks U.S. Citizenship Without

Filing Suit, 1901-1903

Sam Erman

Abstract: This essay forms the bulk of the fifth chapter of ten in my book project, “Citizenship Ends: The Decline of the Reconstruction Constitution after the U.S. Imperial Turn.” The book provides a new account of how U.S. empire became constitutional. The chapter traces the 1901-1903 efforts of the first Puerto Rican representative in Washington, Federico Degetau, to convince U.S. officials that the Reconstruction Constitution was up to imperial governance. Specifically, Degetau argued that annexation of his homeland in 1899 had brought his people U.S. citizenship, full constitutional rights, and eventual statehood. Federal officials responded with evasion. In a reflection of the bounded potential of administrative constitutionalism, Degetau had his greatest successes before executive agencies. They conceded him rights but not citizenship. The chapter also advances the book’s larger claims. Legal legacies of Reconstruction had traction in elite legal circles throughout 1901-1903, as they would for years afterward. Federal judges, lawmakers, and administrators all responded to tensions between Constitution and empire with creative ambiguity, a tentative and iterative process that would eventually produce the Imperial Constitution. And like other Puerto Ricans before and since, Degetau variously challenged, worked within, and acted to shape the shifting legal landscape of empire.

Federico Degetau made a splash. Mainland newspapers

swooned that the first elected representative to reach the capitol from

the recent Spanish cessions was among “the finest looking men” in

Washington, a towering figure “of splendid physique and engaging

presence.”1 Dozens of articles detailed his refinement and

accomplishments.2 He symbolically swept aside anti-imperialist

portents of annexation as racial apocalypse by declaring himself and

his countrymen “naturally Americans.”3 In portraits seen round the

1 “Hawaii and Porto Rico at Washington,” Sunday Pioneer Press, 10 Feb. 1901, available at CIHCAM 12/L2.2 See, e.g., CIHCAM 12/L2.3 “Porto Rico Delegate,” Indianapolis Journal, 3 Dec. 1900, available at CIHCAM 12/L2 (“we are naturally Americans”).

2

Source: “Frederic Degetau y Gonzalez,” Harpers Weekly,22 Dec. 1900, available at CIHCAM 12/L2.

nation, he posed as a well-heeled white gentleman, albeit perhaps of the brooding Romantic

mold.4 He expressed confidence that Puerto Ricans merited and would receive the

Reconstruction Constitution and announced plans to use courts and Congress to secure it. He

specifically sought full constitutional rights; government “of, for, and by the people”; “organized

territory [status] for Porto Rico as paving the way to become a State of the Union”; and

transformation of himself into a traditional Territorial Delegate.5

It was a bold and ambitious strategy. As Degetau quickly to realize, bravado alone would

not coax reluctant federal institutions into action. No single burst of press coverage could alter

U.S. public opinion on the place of Puerto Ricans in racial hierarchies. But the new

Commissioner was relentless.

Throughout his first term (1901-1903),6 Degetau made it his mantra that Puerto Ricans

were entitled to integration into the U.S. constitutional order on an equal footing with other U.S.

citizens. He told mainlanders tales of a century of Puerto Rican struggles for liberal republican

reforms, crafting the stories to show that Puerto Ricans had demonstrated their readiness for full

participation in the U.S. polity. On his view, the Reconstruction Constitution demanded no less.

When federal institutions and mainland public opinion proved stubbornly unreceptive to

Degetau’s claims, he responded with ingenuity and experimentation. He launched a whirlwind

campaign of networking, public relations, and attempts to harness “administrative

4 See, e.g., CIHCAM 12/L2.5 “Statehood Their Aim,” Washington Post, 15 Dec. 1900, available at CIHCAM 12/L2; “Porto Rican Delegate,” St. Louis Republic, 3 Dec. 1900, available at CIHCAM 12/L2; title unknown, Detroit News, 3 Dec. 1900, available at CIHCAM 12/L2; “Porto Rican Commissioner,” New York Sun, 3 Dec. 1900, available at CIHCAM 12/L2.6 Though Resident Commissioners’ terms subsequently ran from March to March of odd years, Degetau may have been permitted to occupy his official post as early as December 1900. Act of 1 Jul. 1902, Pub. L. No. 249, sec. 3, 32 Stat. 731, 732; “Porto Rico Delegate’s Status,” New York Evening Post, 7 Dec. 1900, available at CIHCAM 12/L2.

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constitutionalism.”7 The federal government, academe, public gatherings, and prominent

individuals all became audiences for his depictions of Puerto Rican whiteness, which he also

sought to exemplify. The strategy depended upon the potentially heroic assumption that

mainlanders were willing to judge Degetau’s island on its best men rather than its average

residents. As Degetau tested the proposition, he also placed a string of legalistic claims before

federal officials.8 While focusing on U.S. citizenship, which he continued to see as the gateway

to the Reconstruction Constitution, he prioritized appeals to executive agencies, a reflection of

his belief that administrators would resolve properly presented disputes according to law and that

the decisions they reached were likely to influence lawmakers and judges.9 Such influence could

flow from either the persuasive power of agency legal analysis or the realization that colonial

administrators would willingly hew to the Reconstruction Constitution. The challenge for

7 Sophia Z. Lee, “Race, Sex, and Rulemaking: Administrative Constitutionalism and the Workplace, 1960 to the Present,” Virginia Law Review 96 (2010): 799-881; Sophia Z. Lee, “Hotspots in a Cold War: The NAACP’s Postwar Workplace Constitutionalism, 1948–1964,” Law & History Review 26 (2008): 327-77; Gillian E. Metzger, “Administrative Constitutionalism,” Texas Law Review 91 (2013): 1897-1935; Reuel E. Schiller, “Free Speech and Expertise: Administrative Censorship and the Birth of the Modern First Amendment,” Virginia Law Review 86 (2000): 1-102; Reuel E. Schiller, “Enlarging the Administrative Polity: Administrative Law and the Changing Definition of Pluralism, 1945–1970,” Vanderbilt Law Review 53 (2000): 1389-1453.8 Long before the New Deal, it is now clear, federal administration played numerous and powerful roles in the United States, including undertaking mass adjudications and developing extensive internal administrative law to guide their resolution. See Jerry L. Mashaw, “Federal Administration and Administrative Law in the Gilded Age,” Yale Law Journal 119 (2010): 1362-1472; Andrew J. Polsky and William D. Adler, “The State in a Blue Uniform,” Polity 40 (Jul. 2008): 348-54; William J. Novak, “The Myth of the “Weak” American State,” American Historical Review 113 (Jun. 2008): 752-72; Daniel P. Carpenter, The Forging of Bureaucratic Autonomy (Princeton, N.J.: Princeton University Press, 2001). For critical reviews of perceptions of federal administration as weak and lawless, see Desmond King and Robert C. Liebman, “Finding the American State: Transcending the “Statelessness” Account,” Polity 40 (Jul. 2008): 370; Mashaw, “Federal Administration,” 1362. Schiller, “Free Speech,” describes administrative responsibility for speech regulation in the first half of the 20th century.9 See Lee, “Race, Sex, and Rulemaking,” 806 nn.14-16 (collecting sources describing how agencies often work on matters of potential constitutional moment and how they and reviewing courts should proceed in such cases).

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Degetau was the bureaucrats.

Few federal officials shared Degetau’s enthusiasm for clarity. Administrators joined

judges and lawmakers in a concerted federal effort to evade Degetau’s claims. These mostly

Republican men were not convinced that the Reconstruction Constitution was up to the job of

colonial governance. Although many were reluctant to declare their opposition to a key legal

legacy of the Civil War, they used vagueness and avoidance to defer final reckoning. The result

was a cat-and-mouse game testing the plasticity of law. Degetau sought to corner U.S. officials

with well-framed claims, while they looked for legal escape routes.

Empire Reaches the Court

Degetau’s first official acts in Washington included attending Supreme Court arguments

in the earliest Insular Cases.10 Many anticipated that these nine appeals concerning the status of

newly acquired U.S. people and places would reshape the juridical landscape of U.S. empire.11

Two cases, DeLima v. Bidwell (1901)12 and Downes v. Bidwell (1901),13 turned on whether

Puerto Rico was “foreign” or a part of the “United States.” If Puerto Rico were foreign

10 “American Life Split into Parts,” Bulletin of Philadelphia, 19 Dec. 1900, available at CIHCAM 22/L2.11 For accounts placing greater emphasis on the openness of the opinions to deannexation and non-citizen U.S. nationality, see Christina Duffy Burnett, “‘They say I am not an American . . .’: The Noncitizen National and the Law of American Empire, Virginia Journal of International Law 48 (Summer 2008): 659-718; Christina Duffy Burnett, “Untied States: American Expansion and Territorial Deannexation,” University of Chicago Law Review 72 (Summer 2005): 797-879. The Insular Cases marked a transformation of political debates over U.S. imperialism into judicial ones. See Krishanti Vignarajah, “The Political Roots of Judicial Legitimacy: Explaining the Enduring Validity of the Insular Cases,” University of Chicago Law Review 77 (2010): 822 and n.177; Bartholomew H. Sparrow, The Insular Cases and the Emergence of American Empire (Lawrence: University of Kansas Press, 2006), 3–9, 40; Juan R. Torruella, “The Insular Cases: The Establishment of a Regime of Political Apartheid,” University of Pennsylvania Journal of International Law 29 2007): 284-85, [Federico Degetau], “Manifiesto del Comisionado Señor Degetau,” La Correspondencia, 6 June 1901, available at CIHCAM 12/L2.12 182 U.S. 1 (1901).13 182 U.S. 244 (1901).

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notwithstanding its cession by Spain to the United States in April 1899, then shipments

immediately afterward from San Juan to New York remained subject to the tariff on “articles

imported from foreign countries.”14 If Puerto Rico were part of the United States, then the tariff

in the 1900 Foraker Act on all U.S.-Puerto Rican trade would be invalid as a violation of the

constitutional rule that “all duties . . . be uniform throughout the United States.” These questions

implicated citizenship. As Frederic Coudert, the prominent lawyer from the Coudert Brothers

Firm chosen to speak for private litigants in both cases, told the Court: “[I]f the inhabitants of

these islands are citizens of the United States, it would be admitted that the islands themselves

were part of the United States.”15 Because other Insular Cases involved issues of Filipino status,

the nine cases as a whole presented the Court an opportunity to treat Puerto Rico and the

Philippines differently.16 Degetau hoped for decisions that could not “be designated as a

difference between the United States and Porto Rico.”17 Ideally, they would include declarations

that Puerto Rico was part of the United States rather than foreign, that Puerto Ricans were U.S.

citizens, and perhaps that Puerto Ricans were superior to Filipinos.

In a reflection of how the politics of empire and Reconstruction could confound each

other, Degetau and Coudert sought the same outcomes in the cases and occupied similar ethnic

and professional stations despite aligning with opposing parties. Both men proudly advertised

their Latin heritage as they pursued recognition as top lawyers and political figures amidst anti-

Latin racial theories of Anglo-Saxon supremacy.18 They shared expertise in international and

14 Tariff Act of 24 July 1897, 30 Stat. 151, 151.15 Opening Argument of Mr. Coudert for Plaintiff in Error, No. 507, Downes, 182 U.S. 244 (8 Jan. 1901), 9.16 See, e.g., Sparrow, Insular Cases, 122-25, 130-32, 140.17 “American Life Split into Parts.”18 Veenswijk, Coudert Brothers, 96-170, 72, 96, 104. On lawyers and the bar as a potentially powerful institutions within the U.S. state, see John D. Skrentny, “Law and the American State,” Annual Review of Sociology 32 (2006): 231; Keith E. Whittington, “Once More Unto the Breach: PostBehavioralist Approaches to Judicial Politics,” Law and Social Inquiry 25 (2000): 618; Paul

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constitutional law, familiarity with elite trans-Atlantic Latin circles, and bonds to their French

ancestral homeland.19 Both believed that Latin peoples such as French immigrants and annexed

Puerto Ricans should be integrated into the U.S. constitutional system.20 Degetau’s Republican

friends included policy makers wont to deprecate Puerto Ricans as racial subordinates, and

Coudert’s primary academic mentor, the prominent Columbia Professor John W. Burgess,

promoted a “theory of the Teutonic government of the world” inconsistent with comparable

Latin greatness.21

Degetau and Coudert each articulated legal theories that their own parties might reject.

As a general matter, Coudert joined fellow Democrats in maintaining an anemic understanding

of the Reconstruction Amendments, a position resonant with his mentor Burgess’s influential

view that Reconstruction was a tragic mistake.22 Though the Fourteenth Amendment expanded

the distribution of U.S. citizenship, Coudert contended, it did not alter the inconsequentiality of

the status. Before the Court, he joined those anti-imperialist Democrats who sought to forge from

the Citizenship Clause of the Fourteenth Amendment a sword to wield against Republican

Frymer, Black and Blue: African Americans, the Labor Movement, and the Decline of the Democratic Party (Princeton, N.J.: Princeton University Press, 2007); John Fabian Witt, “Law and War in American History,” American Historical Review 115 (2010): 769-70 (noting that four of the most important secretaries of war were lawyers); Novak, “Myth,” 767; Daniel R. Ernst, “The Politics of Administrative Law: New York's Anti-Bureaucracy Clause and the O'Brian-Wagner Campaign of 1938,” Law & History Review 27 (2009): 331-72; Daniel R. Ernst, “Morgan and the New Dealers,” Journal of Policy History 20 (2008): 447-81.19 Virginia Kays Veenswijk, Coudert Brothers: A Legacy in Law: The History of America’s First International Law Firm 1853-1993 (New York: Truman Talley Books/Dutton, 1994), 36, 29-30, 50, 54, 60, 102-04, 119, 151; Frederic R. Coudert, Certainty and Justice: Studies of the Conflict between Precedent and Progress in the Development of the Law (New York: D. Appleton and Co., 1913).20 Id., 150-51.21 Veenswijk, Coudert Brothers , 94-97, 137, 170.22 “F.R. Coudert for Taft,” New York Tribune, 24 Sep. 1908, 3; Veenswijk, Coudert Brothers, 26, 36-37, 39-40, 70-71, 80, 84-93; John W. Burgess, Reconstruction and the Constitution, 1866-1876 (New York: Charles Scribners’ Sons, 1905 [1902]); Eric Foner, Reconstruction: America’s Unfinished Revolution 1863-1877 (New York: Harper & Row, Publishers, 1988), xix-xx.

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expansionists. Though Democrats had long resented this clause, Coudert now urged the Court to

extend the geographic scope of its jus-soli-citizenship guarantee to the limits of U.S. sovereignty.

Whether the bulk of Democrats accepted the contention that Filipinos were already U.S. citizens

was doubtful, however. For his part, Degetau planned to ask Republican judges, lawmakers, and

administrators to enforce the Reconstruction Constitution in Puerto Rico by extending islanders

U.S. citizenship, constitutional rights, and eventual statehood.23 In doing so, he found himself at

odds with the legal representatives of the United States. Attorney General John Griggs and

Solicitor General John Richards hailed from the Republican Party that had launched imperial

governance in Puerto Rico and the Philippines and prioritized federal discretion above Puerto

Rican rights.

Griggs and Richards urged the justices to hold the Reconstruction Constitution

inappropriate for Puerto Rico and Puerto Ricans. They fortified the position with analogies to

disfavored U.S. people and places, the sorts of comparisons that Degetau found insulting and

inapt. Specifically, these men insisted that annexation had not brought Puerto Ricans U.S.

citizenship or made Puerto Rico a part of the “United States” within which the Constitution

demanded tariff uniformity. The attorneys reminded the Court that the Constitution accorded

federal lawmakers great discretion in governing Mormons in Utah Territory, Confederate states

occupied by Union troops during the Civil War, Guano Islands deemed appurtenant to the United

States, and U.S. consular courts in Japan.24 They cited Dred Scott, slave status, the “quasi-

foreign” character of American Indians, the probationary status of pre-naturalization immigrants,

23 For an overview and advance of empirical literature on the relationship between ideology, judicial decision-making, and the partisan makeup of the political branches at the time of judicial appointment, see Lee Epstein, William M. Landes, Richard A. Posner, The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice (Cambridge, Mass.: Harvard University Press, 2013). 24 Brief for the United States, No. 340, Goetze v. United States, 182 U.S. 221 (1901), 16, 28, 105-06, 172-73.

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and temporarily delayed citizenship for previous annexed peoples as evidence of U.S. power to

determine whether “inhabitants of lately foreign islands may be admitted to” U.S. citizenship.25

Contrary to Degetau’s view that Puerto Ricans sat atop racial hierarchies, Griggs lumped

them and Filipinos together at the bottom. He spun an apocalyptic fable of sacrosanct U.S.

citizenship: “Suppose a cession of a small island with a half dozen inhabitants is desired as a

fort.” To require that the United States “accept them as citizens” would be “to put shackles on

the national limbs.”26 Citizenship mattered so much, Griggs presumed, that the United States

would forego expansion before ceding any part of the naturalization power. But why?

Citizenship or no, lawyers on all sides agreed, the decision whether to admit acquired territory as

states of the Union was one for the political branches to make.27 A few new rights holders could

hardly cripple a nation of seventy-five million. Instead, Griggs trusted his judicial audience to

see that the true threat was neither a handful of hypothetical islanders nor hundreds of thousands

of Puerto Ricans of debatable racial provenance, but rather eight million racially degraded

Filipinos. Declining to emphasize the millions of people to whom he would have the justices

deny any national citizenship was a way to obscure the harsh implications of the position he

propounded. Griggs’s shackles metaphor compounded the erasure by equating U.S. citizenship

with national bondage rather than recognizing its traditional associations with emancipation and

individual liberation.

Griggs proposed that Puerto Ricans not be categorized as either citizens or aliens, but

instead as “noncitizen subjects.”28 This position was just the kind of formally second-class status

25 Id., 59-60, 69; Brief for the United States, No. 456, De Lima v. Bidwell, 182 U.S. 1 (1901), 50, 68.26 Argument of the Attorney General, Goetze, 182 U.S. 221, 73; Brief for the United States, Goetze, 182 U.S. 221, 71.27 E.g., Brief for Appelant, Goetze, 182 U.S. 221, 59.28 Brief for the United States 72, No. 340, Goetze v. United States, 182 U.S. 221 (1901).

9

against which creole (which is to say, island-born) Puerto Ricans had chafed during Spanish rule.

As Coudert pointed out, the government’s proposed category avoided the worse sin of denying

Puerto Rico “independent nationality” while reducing Puerto Ricans to U.S. alienage. As Griggs

told the Court, subjection also had the virtue of vagueness: “To be called an American subject is

no disgrace. The term does not imply anything as to the nature or form of the government of

which one is a subject. It imports only that a person is within the protection and allegiance—

either permanent or temporary—of a particular sovereignty.”29

Like Degetau, Coudert rejected the analogy to African Americans and American Indians.

The unique positions of these two groups, which both contained or had contained noncitizen U.S.

“nationals,” he contended, strengthened Puerto Ricans’ claim to U.S. citizenship. Noncitizen

American Indians illustrated that the Fourteenth Amendment jus soli doctrine demanded

allegiance at birth. Like a foreign minister’s child born owing permanent allegiance to his

parents’ country of origin, newborn American Indians who owed primary allegiance to tribal

communities fell outside the ambit of the provision. That American Indians faced such an

allegiance requirement provided no support for the government’s claim that places like Puerto

Rico were beyond the geographic reach of constitutional jus soli citizenship. Instead, as Coudert

put it, “birth within [Indian] territory was enough to endow the [American Indian] so born with

citizenship—unless he owed immediate allegiance to some tribe.”30

Indeed, Coudert used the anomalous status of American Indians as a way to placate those

who worried, as Democratic Senator Donelson Caffery of Louisiana phrased it, that Filipinos

“incapable of reaching our standard of government or civilization . . . might inoculate our

29 Id.30 Opening Argument of Mr. Coudert, Downes, 182 U.S. 244, 42-44; Brief for Plaintiffs in Error, Downes, 78, 79-99.

10

citizenship with the poison of theirs.”31 Himself no racial egalitarian, Coudert explained that the

United States could class “uncivilized” Filipinos with American Indians for constitutional

purposes.32 Treating them as owing an allegiance to their local leaders would remove them from

full U.S. sovereignty. They would no longer be among the “persons born or naturalized in the

United States and subject to the jurisdiction thereof” whom the Fourteenth Amendment

recognized as “citizens of the United States.”33 Because Puerto Rico was not home to “hordes of

untamed Malays” like the Philippines, Coudert implied, the example of American Indians

provided no basis for denying them U.S. citizenship.34

As to the Dred Scott case, which Coudert acknowledged had treated free Blacks as

noncitizen U.S. subjects before the Civil War, he urged the justices to rejects the infamous

precedent as aberrational.35 Chief Justice Roger Brooke Taney, Coudert recalled, had stressed

that people of African descent were “capable of being made property” and “subjects only in the

sense that cattle are subjects.”36 Channeling Taney’s virulent racism, Coudert declared that “the

negro was . . . under the Constitution . . . something different and apart from the rest of

humanity,”37 “something . . . in the domain of natural history or zoology . . . like a horse or a

dog,”38 “half man, half beast.”39 But emancipation meant that Puerto Ricans did not and could not

“occupy that debased position.”40 Moreover, Coudert thundered, Taney’s “views have been

31 “Caffery on the Philippines,” New York Times, 7 Feb. 1900, 5.32 Opening Argument of Mr. Coudert, Downes, 182 U.S. 244, 42-44; Brief for Plaintiffs in Error, Downes, 78-99.33 U.S. Const., Am. 14, sec. 1.34 Opening Argument of Mr. Coudert, Downes, 182 U.S. 244, 42-43.35 On anti-precedent, see Jamal Greene, “The Anticanon,” Harvard Law Review, 125 (Dec. 2011), 379-475.36 Opening Argument of Mr. Coudert, Downes, 182 U.S. 244, 44.37 Brief for Plaintiffs, Downes, 182 U.S. 244, 95.38 Opening Argument of Mr. Coudert, Downes, 182 U.S. 244, 43.39 Brief for Plaintiffs, Downes, 182 U.S. 244, 8440 Opening Argument of Mr. Coudert, Downes, 182 U.S. 244, 43. On re-enslavement in the antebellum U.S. South, see Ira Berlin, Slaves without Masters: The Free Negro in the Antebellum

11

repudiated by the American people in the Civil War, by three amendments to the Constitution of

the United States, by this court, and by forty years of advancing civilization.”41

At the same time, Coudert did not advance Degetau’s view that U.S. citizenship was a

gateway to full constitutional rights and eventual statehood. Instead, he told the justices, U.S.

citizenship was broadly distributed and of little consequence. As a legal matter, U.S. citizenship

posed no threat. It was “passive” or “naked,” synonymous simply with nationality. Reworking

the War Department’s legal analysis, Coudert reminded the Court of such U.S. citizens lacking

political rights as “women, children and all persons in the Territories” as well as those who did

not meet state literacy requirements for voting.42 By declining to provide grounds on which the

Court could distinguish Puerto Ricans from Filipinos, he suggested that U.S. citizenship would

even be appropriate for that purportedly degraded people, or at least its most civilized strata.43

Degetau’s difference with Coudert over the significance of U.S. citizenship reflected a

deeper divide between the men over the nature of constitutional change. Degetau perceived

judges as apolitical practitioners of a legal craft, “independent of all administration or opposition

influence.”44 Because the Reconstruction Constitution was in his view good law, he expected the

justices to vindicate it. By contrast, lawyers in the case and the lawmakers whose enactment was

South (New York: The New Press, 1974), 370-380; Rebecca J. Scott, “Paper Thin: Freedom and Re-enslavement in the Diaspora of the Haitian Revolution,” Law & History Review 29 (2011): 1061-87; Rebecca J. Scott, “Under Color of Law: Siliadin v. France and the Dynamics of Enslavement in Historical Perspective,” in C. McCrudden ed., Understanding Human Dignity (Oxford: Oxford University Press, 2014), 152-64.41 Brief for Plaintiffs, Downes, 182 U.S. 244, 99.42 Opening Argument of Mr. Coudert, Downes, 182 U.S. 244, 41-42; Brief for Plaintiffs in Error, Downes, 92, 82, 85-93. 43 Opening Argument of Mr. Coudert, Downes, 182 U.S. 244, 40. But cf. Brief for Plaintiffs in Error, Downes, 86, which did not mention the Philippines when asserting that it was “very clear that Porto Rico and the Island of Guam have no nationality of their own.”44 [Degetau], “Manifiesto” (“independiente de todo influjo de gobiernos y de oposiciones”); see also Untitled article, [News], 3 Dec. 1900, available at CIHCAM 12/L2; Draft, [Federico Degetau] to Manuel Rossy, 20 Feb. 1902, CIHCAM 2/VII/47.

12

before the Court expected the justices to weigh potential real-world consequences as they charted

a constitutional course.45 Coudert addressed such concerns in concluding remarks touting the

existing constitutional order as itself a proven Imperial Constitution: “We have heretofore

governed territories peopled by all kinds of races . . . and given them the benefit of the

Constitution, and we have had the best governed colonies . . . in the world.”46 In their arguments

to the Court, Griggs and Richards foresaw a parade of political horribles following a loss for the

government. The federal lawmakers who had framed the Foraker Act had thought it worthwhile

to stack the stakes of the test suit in ways calculated to curry judicial favor. Yet Coudert and

Degetau’s differences ran deeper. Degetau’s first faith was in law, not courts. He presumed that

nonjudicial officials would adhere to the Reconstruction Constitution if pressed. Because

Degetau treated their decisions as legal authority, he saw in such officials the potential to

advance his cause. As the justices returned to deliberations, Degetau turned to claims that could

be brought without filing suit.

Degetau’s Pre-Judicial Gambits

Degetau realized just how daunting were the obstacles he faced in early 1901. Racial bias

against Puerto Ricans was deep, widespread, and persistent, “much more negative,” he told

colleagues, “than the worst ideas we had heard or imagined.”47 Degetau’s plan to seek immediate

legal recognition from Congress and the courts had to be shelved. The Supreme Court was

already occupied with nine Insular Cases. Congress “would not do anything until the Supreme

45 Brief for Plaintiffs, Downes, 182 U.S. 244, 102-03.46 Opening Argument of Mr. Coudert, Downes, 182 U.S. 244, 45; Brief for Plaintiffs, Downes, 182 U.S. 244, 80-99.47 Federico Degetau to Manuel Rossy, 4 Jan. 1901, CIHCAM 2/VI/2 (“excede con mucho al que los [ideas] mas pesimistas entre nosotros haya podido expresar ni suponer que se expresara por otros”); see also “Porto Rican’s Ambition,” Washington Times, 10 July 1901, available at 18/L1; [Federico Degetau], Diary, 10 Dec. 1901, CIHCAM 11/L4.

13

Court decides the pending cases.”48 Ever a Pollyanna, Degetau turned enthusiastically to the best

opportunities that remained: a mixture of networking, administrative claims, and Puerto Rican

boosterism.

In a prophetic understatement, Degetau told island allies soon after disembarking that

“ignorance about our country . . . makes our political labor here hard.”49 In evaluating Puerto

Ricans as a people, mainlanders often ignored the accomplishments of leading men like himself

to focus on typical islanders. In their eyes, Puerto Ricans appeared as a dependent people defined

by their Black, indigenous, and southern European heritages. They judged them similar to

Filipinos. Editorial cartoonists caricatured them as akin to Africans or American Indian

“savages,” European ethnics, children, and women. Travel writers described Puerto Ricans’

purportedly inferior “culture and state of civilization.” Newspapers treated them as “only 85

percent Americans,” albeit as superior to the “fifty per cent citizens” of the Philippines.50

Appalled, Degetau made the “great work of correcting these mistaken impressions . . . my

foremost duty.”51

48 Draft, [Federico Degetau] to Manuél Rossy, 18 Jan. 1901, CIHCAM 2/VI/11 (“ha resuelto no hacer nada hasta que el Tribunál Supremeo decida los casos que tiene pendienetes”).49 Federico Degetau to Manuel Rossy et al., 8 Dec. 1900, CIHCAM 2/V/12 (“El desconocimiento que hay sobre nuestro país . . . hacen nuestra labor política aquí difícil”); Degetau to Rossy, 4 Jan. 1901.50 Degetau to Rossy et al., 8 Dec. 1900 (“de nuestra cultura y del estado de civilización”); title unknown, Wheeling, W. Va. Register, [Dec. 1900?], available at CIHCAM 12/L2; see also “Porto Rican Lawmaking,” New York Times, 26 Jan. 1902, 8; John J. Johnson, Latin America in Caricature (Austin: University of Texas Press, 1980); Lanny Thompson, “Representation and Rule in the Imperial Archipelago: Cuba, Puerto Rico, Hawai‘i, and the Philippines under U.S. Dominion after 1898,” American Studies Asia 1 (2002): 32; Lanny Thompson, “Aesthetics and Empire: The Sense of Feminine Beauty in the Making of the U.S. Imperial Archipelago,” Culture & History Digital Journal 2(2): e027, doi: http://dx.doi.org/10.3989/chdj.2013.027 (2013).51 Degetau to Rossy, 4 Jan. 1901 (“La obra magna de rectificar esa errónea apreciación, entiendo que es mi primer deber”).

14

Left to right: Uncle Sam, Puerto Rico, Hawaii. Though more white and civilized than Hawai‘i, Puerto Rico in this Puck illustration remains a child at Uncle Sam’s Thanksgiving table.

Left to right: Cuban Ex-Patriot, Filipino Guerilla, Uncle Sam, Hawaii, Porto Rico. While depicting Puerto Ricans as whiter and more civilized than other peoples recently given up by Spain, this Harper’s Weekly illustration stresses ostensible Puerto Rican passivity by casting the island as female.

Clockwise from bottom: Uncle Sam, Filipino, Porto Rico, Cuba, Samoa, Hawaii. Drawing on stereotypic images of Blacks, this Judge cartoon renders all the newly acquired U.S. peoples as an undifferentiated mass of savages.52

Left to right: Cuba, Porto Rico, Labor, Uncle Sam, cherub, Columbia, Capital, Farmer, Philippines, Hawaii. While racially differentiated from Uncle Sam, Columbia, and U.S. economic constituencies, this Puck cartoon portrays Puerto Rico as the lightest-skinned and best-dressed of the newly acquired U.S. peoples.

52 Clockwise from top left: Excerpt, Udo J. Keppler, Cartoon, “A Thanksgiving Toast,” Puck, 30 Nov. 1898, centerfold, LOCPP, available at http://www.theodorerooseveltcenter.org/Research/Digital-Library/Record.aspx?libID=o289048, TRDLDSU; Excerpt, W.A. Rogers, Cartoon, “Uncle Sam’s New Class in the Art of Self-Government,” Harper’s Weekly, 27 Aug. 1898, cover, reproduced in Servando D. Halili Jr., Iconography of the New Empire: Race and Gender Images and the American Colonization of the Philippines (Quezon City, Phil.: University of the Philippines Press, 2006), 89; Excerpt, Victor Gillam, Cartoon, “The White Man’s Burden (Apologies to Kipling),” Judge, 1899, reprinted in

15

To shift mainland opinion, Degetau sought opportunities to present himself and other

leading Puerto Ricans as exemplars of Puerto Rican readiness for integration into U.S. life. As he

performed and described elite Puerto Rican refinement and asked mainland audiences to make it

the measure of his people, he won a reputation as a “highly . . . diplomatic man” of “brilliant

attainments” who “created a favorable impression in the public life of Washington.”53 Soon he

was making near-daily visits to the Capitol, attending meetings with executive and judicial

officials, securing publication of his views in newspapers, and gaining entry to academic

gatherings.54 He used these opportunities to mount an aggressive defense of Puerto Ricans’

civilization and abilities.

Degetau aimed to persuade his many mainland audiences that members of the island’s

elite political class were effective advocates for liberties and experienced in self-government.

Susan K. Harris, God’s Arbiters: Americans and the Philippines (Oxford: Oxford University Press, 2011), fig. 14; Excerpt, J.S. Pughe, Cartoon, “Hurray! The Country Is Saved Again!” Puck, centerfold, 14 Nov. 1900, LOCPP, available at http://www.theodorerooseveltcenter.org/Research/Digital-Library/Record.aspx?libID=o275681, TRDLDSU.53 “A Credit to Porto Rico,” Washington Times, 9 Nov. 1901, available at CIHCAM 18/L1; “Hawaii and Porto Rico at Washington.”54 “A Credit to Porto Rico”; “Hawaii and Porto Rico at Washington”; [Degetau], Diary, 18 Nov. 1901 to 18 Feb. 1902; Federico Degetau, “The Porto Ricans as Soldiers and as Legislators,” Philadelphia Record, 23 May 1901, available at CIHCAM 12/L2. On making governmental contacts, see Degetau to Rossy, 4 Jan. 1901; [Degetau], Diary. On nongovernmental networks, see, for example, id.; Geo. Moore to Federico Degetau, Feb. 1903, CIHCAM 3/VII/29; Draft, [Federico Degetau], Toast of Federico Degetau, 32°, on “The Government of the United States” at the Banquet at the Battle House, Mobile, Ala., 22 April 1903, CIHCAM 18/L1; Henry Cooper to Federico Degetau, 3 May 1903, CIHCAM 4/II/159; Manuel Rojas to Federico Degetau, 6 Jan. 1903, CIHCAM 3/VII/4; Fred Woodward to F. Degeteau, 18 Mar. 1903, CICHAM 4/I/91; E. Harris to Frederico [sic] Degetau, 11 Apr. 1903, CIHCAM 4/II/133; John Leathers to Frederico [sic] Degetau, 24 Sep. 1903, CIHCAM 4/V/297. On follow-up, see, for example, [Federico Degetau] to Henry Cooper, July 15, 1901, CIHCAM 3/II/33; Degetau to Cooper, 15 Jul. 1901; Henry Hoyt to Federico Degetau, 12 Dec. 1903, CIHCAM 4/VII/16; Draft, Federico Degetau to Ramón B. Lopez, 31 May 1901, CIHCAM 3/I/42; J. Goulden to Federico Degetau, 6 Jun. 1904, CIHCAM 5/II/9; [Illegible] Hughes to Federico Degetau, 1 Jun. 1904, CIHCAM 5/II/1; E.D. Crumpacker to Federico Degetau, 15 Dec. 1902, CIHCAM 3/VI/65; J.B. Foraker to Federico Degetau, 22 Dec. 1902, CIHCAM 3/VI/70; Sereno Payne to Federico Degetau, 21 Apr. 1904, CIHCAM 5/I/14; [Degetau], Diary.

16

Drawing on Spanish-era battles over both territorial status within the Spanish empire and the

political status of Puerto Rico-born Spaniards, Degetau provided a stylized history.55 In classical

times the Roman ancestors of Puerto Ricans

formulated principles upon which U.S.-citizens-to-

be came to draw in formulating their Constitution.56

Spain joined the trans-Atlantic struggle for liberty

with its “noble and glorious” 1812 Constitution, in

which Puerto Ricans played a key role.57 Islanders’

subsequent struggles helped create a Puerto Rico

that sent representatives and senators to the Spanish

Cortes, had “practically . . . universal” male

suffrage, housed a population with an identical

juridical status to that of other Spaniards, and

constituted “a province of Spain equal to the other

provinces” and endowed with more autonomy than

U.S. states.5859 In 1873, island liberals’ efforts also ended slavery in Puerto Rico, placing them

55 For less heroic accounts of historical Puerto Rican status and rights, see, for example, José Trías Monge, Historia constitucional de Puerto Rico, (Editorial de la Universidad de Puerto Rico, 1980 et seq.); Francisco A. Scarano, Puerto Rico: cinco siglos de historia (Bogotá: McGraw-Hill, 1993).56 “American Life Split into Parts.”57 Degetau, “Puerto Ricans as Soldiers and as Legislators.”58 Jacob H. Hollander et al., Discussion, in Publications of the American Economic Association (3d ser.) 3 (1902): 342, 347-50 (1902); Degetau, “Puerto Ricans as Soldiers and as Legislators”; “La American Economic Association y el Comisionado Señor Degetau,” La Correspondencia, 22 Jan. 1902, available at CIHCAM 18/L1; Federico Degetau, The Political Status of Porto Rico (Washington, D.C.: Globe Printing Co., 1902), 14.59 See also Henry Cooper to Federico Degetau, 8 Jul. 1901, CIHCAM 3/II/33; [Federico Degetau] to J.B. Foraker, 27 May 1901, CIHCAM 3/I/38; E.L. [?] to Federico Degetau, 5 Jun. 1901, CIHCAM 3/II/5; Joseph Sibley to Frederico Degetau, 20 Jun. 1901, CIHCAM 3/II/17; Theodore Roosevelt to Federico Degetau, 24 Jun. 1901, CIHCAM 3/II/22; Charles Fairbanks to

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An advertisement in the Philadelphia Inquirer for a forthcoming feature article by Federico Degetau. In the article, Degetau recounted a heroic

firmly on the same march toward progress as their U.S. counterparts.60

In Degetau’s hands, creole Puerto Ricans’ support for the U.S. invasion reflected the

masculine virtues of pursuit of liberty. Praising the autonomy that Puerto Ricans had won in

1897, Degetau described an island motivated in 1898 by its “ardent love of [U.S.] liberty” and

not any desperation to escape Spanish rule. Had creoles opposed the invasion, he implied, U.S.

forces would have faced stiff and costly resistance.61

Aiming to align Puerto Ricans like himself with top Republicans and their racial privilege

as elite white men, he declared that leading men in both Puerto Rico and the mainland had

struggled for common liberal republican ideals, including individual rights, democracy, and

emancipation. U.S. southerners, he wrote, had fought a bloody war to preserve slavery against

the possibility of gradual and indemnified abolition. By contrast, Puerto Ricans inspired by

Lincoln’s claim that “the Declaration of Independence . . . gave liberty . . . to the world for all

future time” won immediate and uncompensated abolition.62 Similarly, the true victims of Uncle

Tom’s Cabin were “the whites [who] were more enslaved by our mounstrous [sic] crime than our

legal victims.”63 This claim, predicated on erasing slave experiences, removed the voices and

travails of those once held in bondage from Degetau’s depiction of the island.64

F. Degetau, 2 Jul. 1901, CIHCAM 3/II/29; W. Moody to Frederico Degetau, 21 Jul. 1901, CIHCAM 3/II/42; J.A. Tawney to Federico Degetau, 18 Jun. 1901, CIHCAM 3/II/4.60 Degetau, “Puerto Ricans as Soldiers and as Legislators”; Luis A. Figueroa, Sugar, Slavery, and Freedom in Nineteenth-Century Puerto Rico (Chapel Hill: University of North Carolina Press, 2005), 79.61 [Federico Degetau], Something that the American People Must Know about Porto Rico, CIHCAM 7/I/2. Two drafts of this chapter have been preserved. I draw from both.62 Degetau, “Porto Ricans as Soldiers and as Legislators.”63 [Degetau], Something that the American People Must Know.64 Cf. Allison I. Sneider, Suffragists in an Imperial Age: U.S. Expansion and the Woman Question 1870-1929 (Oxford: Oxford University Press, 2008), 9-10, 12-13, 67 (2008) (describing debates over suffrage intertwining with those around empire, American Indians, and the legacy of the Civil War, as advocates of expanded rights also displayed faith in racial hierarchy).

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An advertisement in the Philadelphia Inquirer for a forthcoming feature article by Federico Degetau. In the article, Degetau recounted a heroic

Degetau also sought to distance Puerto Ricans from American Indians and indigenous

Pacific islanders, in part by reinforcing their unenviable stations in U.S. racial hierarchies. Puerto

Ricans had secured duty-free admission of Spanish-language texts. They had adapted to the

secret ballot better than mainlanders. Many spoke multiple languages.65 Spain, presumably in

recognition of their comparative “civilization,” had accorded Puerto Rico a more liberal

government than its Pacific subjects.66 Mainlanders were wrong to equate Puerto Ricans with

“some race of semi-savage ‘Indians’”67 or a Chamorro-like people existing on “the boundaries of

a savage condition.”68

Degetau responded forcefully to affronts to Puerto Rican honor and attacks on Puerto

Ricans as a race, blunting the impact of objectionable statements and showcasing Degetau as a

model of Puerto Rican respectability. To challenge Princeton professor John Finley’s charge

before the American Academy of Political Sciences that “Porto Rico under native rule will never

be developed,” Degetau stressed that Puerto Rico had voluntarily and peacefully freed its

slaves.69 When newspapers critiqued and ridiculed the island legislature, he mounted a public

defense that featured the contrary view of the presidentially appointed Governor there.70

But even as Degetau defended islanders from mainland attacks, he knew that his

countrymen would soon judge him on his progress toward the status and rights he had promised

them. With Congress and courts unavailable, that meant making claims before agencies. A

central challenge of this approach was coaxing administrators to speak. The New York Tribune

65 “American Life Split into Parts”; Treaty of Paris, Article 13, 30 Stat. 1754 (1899); “Senor Degetau Here,” Evening Star, 14 Dec. 1900, available at CIHCAM 22/L2.66 [Federico Degetau], Drafts, The Truth about Porto Rico and Puerto-Rico and Its People, n.d., CIHCAM 18/L2.67 Degetau, Political Status, 7.68 [Degetau], The Truth.69 “Porto Rico Glad of Our Friendship,” Press of Philadelphia, Pa., 19 Dec. 1900, available at CIHCAM 22/L2.70 Degetau to Rossy, 4 Jan. 1902; Degetau, “Porto Ricans as Soldiers and Legislators.”

19

had learned this when it solicited an immigration decision on the citizenship status of Puerto

Ricans by providing Jorge Cruz an employment contract prior to his journey from San Juan to

New York. Though the administration labeled the matter an isolated case and thereby

sidestepped the question whether Cruz was excludable as an alien contract laborer, the issue

recurred.

In 1900, Hawai‘ian sugar planters facing tightening labor supply due to Chinese

Exclusion began recruiting more than 5,000 impoverished Puerto Rican laborers whom they

brought to their plantations via New Orleans.71 When the administration imposed no immigration

delays on the migrants, Degetau perceived a conflict with the recent treatment of “Mr. Alfonso

Gómez y Stanley, a professor who . . . was [temporarily] detained at Ellis Island, N. Y., when it

was known that he was a Porto Rican, and that he had no money.”72 Drawing on his new

acquaintance with Acting Secretary of State David Hill, Degetau suggested that Hill could

prevent “trouble for the agents of the Government, and for Porto Ricans” by clarifying when

“Puerto Ricans are to be considered as aliens, according to the immigration law, and when they

are to be allowed to land as citizens of the United States.”73 Hill’s response was encouraging:

“the error of holding [Gómez], even temporarily, evidently arose from the lack of knowledge of

71 Carmelo Rosario Natal, Exodo puertorriqueño (las emigraciones al caribe y Hawaii: 1900-1915) (San Juan, PR: 1983), 21-34, 58, 60-61, 71-79, passim; Wayne Patterson, The Korean Frontier in America: Immigration to Hawaii, 1896-1910 (Honolulu: University of Hawaii Press, 1994), 9-14; Nitza C. Medina, “Rebellion in the Bay: Claifornia’s First Puerto Ricans,” Centro Journal 13 (Spring 2001): 83-84; Austin Días, “Carlo Mario Fraticelli: A Puerto Rican Poet on the Sugar Plantations of Hawai‘i,” Centro Journal 13 (Spring 2001): 94; Transcription, “Citizenship of Porto Ricans again Brought up,” San Francisco Call, 28 Nov. [1899/1900?], 2-4, in CEPHC/APRM/BCS/21. 72 [Federico Degetau] to Secretary of State, 31 Jan. 1901, CIHCAM 2/VII/65.73 Id.; “Las gestiones de Degetau en defensa de los emigrantes á las islas Hawaii,” La Correspondencia, 25 Sep. 1901, available at CIHCAM 12/L2; Aubrey Parkman, David Jayne Hill and the Problem of World Peace (Cranbury, N.J.: Bucknell University Press, 1975), 65 (describing Hill’s legal training).

20

some officer as to the status of Porto Ricans.”74 Degetau then sought further clarification, for

“concerning the Administration’s opinion of the status of Porto Ricans nothing was said.”75 But

with no pending claim hinging on the answer and the Treasury Department having already once

formulated plans to limit migration from Puerto Rico to New York, the State Department

remained silent.

In many cases, Degetau’s attempts to play offense produced good defense. Although

Degetua did not win recognition of Puerto Ricans as U.S. citizens, he did secure an admission

that Gomez’s detention had been an error. Officials would henceforth be hard pressed to cite it as

authority for withholding other rights or statuses from Puerto Ricans. Were instances of inferior

legal treatment of islanders to accumulate, mainlanders could easily slip from observing the trend

to concluding that Puerto Ricans were racial inferiors who deserved no better. Degetau

confronted such a dynamic when dramatic newspaper reports emerged of Puerto Rican laborers

in transit to Hawai‘ian sugar plantations being held captive at gunpoint, driven to mutiny by lack

of food, and herded between islands by police.76 The San Francisco Examiner drew racial

associations between the migrants and other unfree laborers when it reported that the Puerto

Ricans had “a sort of Chinese twang” and were “dark and look like negroes.”77 Degetau

responded by complaining to Hill that the reported treatment violated the migrants’ rights as U.S.

citizens. On Degetau’s account, plantation-bound islanders in Texas had been “arrested as

74 David Hill to Federico Degetau, 16 Feb. 1901, CIHCAM 2/VII/40.75 Federico Degetau y González, Memorandum in Relation to the American Citizenship of Porto Ricans, CIHCAM 2/VI/19-A; [Federico Degetau] to Secretary of State, 15 Feb. 1901, CIHCAM 2/VII/39.76 Extract, “Contract Laborers from Porto Rico,” New York Tribune, 7 Dec. 1900, CIHCAM 2/VI/19; Draft, [Federico Degetau] to Secretary of State, [30] Jan. 1901, CIHCAM 2/VI/19; “Puerto Ricans Fight for Food,” page and newspaper unknown, [Jan. 1901?], available at CIHCAM 12/L2; “Mutiny in Honolulu Harbor,” Washington Post, 26 Jan. 1901, available at CIHCAM 2/VI/19.77 Transcription, “It is Alleged They Were Procured by a New York Emigration Agent,” San Francisco Examiner, 8 Dec. 1900, 1, in CEPHC/APRM/BCS/21.

21

violators,” ostensibly, “of the criminal law.”78 Others on a steamship in Honolulu Harbor had

been deprived of their liberty by police.79 Federal law, Degetau implied, barred police from

enforcing labor contracts by arresting or subduing U.S. citizens. The alleged behavior of these

employers and their thugs suggested that “Puerto Ricans lacked all political protections, and did

not know what type of citizens they were.”80 For a fleeting moment, Degetau’s paternal

performance of whiteness, his quest to clarify Puerto Rican status, and the needs of his most

vulnerable constituents fell into line.

Disputes involving impoverished Puerto Ricans always had the potential to raise conflicts

between Degetau’s twin claims that Puerto Ricans merited first-class constitutional status and

recognition as the racial equals of mainland elites. That quickly became the case in the dispute

between Puerto Rican migrants and Hawai‘ian elites. Degetau wished to be treated as a white

U.S. territorial official. He did not desire to occupy the station of Puerto Rican workers.

Hawai‘ian officials and planters, who sought to continue recruiting Puerto Rican laborers,

produced an exculpatory report declaring migrants “all satisfied with the treatment they received

in transit.”81 Had Degetau wanted to challenge the cover-up, he could have pointed out that the

islanders had made all these statements in the presence of planters and their allies.82 But Degetau

was no radical in labor matters. Planters’ denials neutralized their actions as the basis for a legal

precedent authorizing mistreatment of Puerto Ricans. With no further progress on issues of status

immediately possible, Degetau congratulated himself for his efforts on behalf of his countrymen

78 [Degetau] to Secretary of State, [30] Jan. 1901.79 Id.80 “Las gestiones de Degetau,” (“los puertorriqueños carecían de toda protección política, y no se sabía siquiera qué clase de ciudadanos eran”).81 Id.; [Degetau] to Secretary of State, 30 Jan. 1901; Hill to Degetau, 16 Feb. 1901; F. A. Schaefer to Sanford Dole, 6 Mar. 1901, CIHCAM 2/IX/3.82 See CICHAM 2/IX.

22

and declared that the charges “were not true.”83

Where Degetau’s electoral, racial, and legal concerns aligned most tidily was in disputes

over his own rights. There Degetau could present himself to mainlanders and constituents as a

competent and accomplished representative of the Puerto Rican people without any worry that a

plebeian claimant would muddy his message. Thus it was that Degetau applied for admission to

practice before the U.S. Supreme Court Bar on April 29, well aware that “the court permits only

citizens of the United States before it.”84 Acting summarily, the Court admitted him.85 Degetau

interpreted the victory broadly: “My admission . . . fixed my personal Status and that of my

constituents as American citizens.”86 Sympathetic island newspaper articles trumpeted, “The

Great National Constitution Covers Puerto Rico,” which now had the same status as “other

territories like Arizona.”87 Degetau’s admission paid political dividends in Puerto Rico. Party

head José Barbosa reported that island public “opinion completely changed to our satisfaction.”88

Notable mainland newspapers and lawyers also hailed this achievement as a victory.89 Charles

Needham, the Dean of Columbian Law School (today the George Washington University School

of Law) announced, “Now I believe that the Constitution is in Puerto Rico.”90

83 [Federico Degetau] to Secretary of State, 15 Apr. 1901, CIHCAM 2/IX/13.84 “Admission of Mr. Degetau,” Washington Post, 1 May 1901, available at CIHCAM 12/L2; “Grata noticia,” El País, 30 Apr. 1901, available at CIHCAM 12/L2.85 “Admission of Mr. Degetau”; “Grata noticia.”86 Draft, [Federico Degetau] to Manuel Rossy, 3 May 1901, CIHCAM 3/I/4; Un Puertorriqueño, “Importante comunicación,” paper unknown, 10 May 1901, available at CIHCAM 12/L2.87 Un Puertorriqueño, “Importante comunicación.”88 Barbosa to Degetau, 13 May 1901 ( “cambió la opinión completamente para satisfacción nuestra”).89 “Constitution Follows the Flag,” Minneapolis Tribune, 1 May 1901, available at CIHCAM 12/L2.90 Un Puertorriqueño, “Importante comunicación” (“Ahora si que creo que la Constitución está en Puerto Rico”).

23

The test would come when the Supreme Court issued its first Insular opinions.

Washington remained transfixed and paralyzed by the prospect.

“The Decisions Produced a Perplexity”: Downes v. Bidwell and DeLima v. Bidwell

In May 1901, the Supreme Court issued momentous yet inconclusive pronouncements in

the most important pending Insular Cases. In opinions both Democratic and Republican declared

a “victory,” it upheld some but not all of the challenged tariffs.91 DeLima v. Bidwell invalidated

the imposition of the general U.S. tariff on United States–Puerto Rican shipments subsequent to

promulgation of the Treaty of Paris. Justice Henry Brown wrote for the Court that Puerto Rico

“was not a foreign country within the meaning of the tariff laws.”92 Downes v. Bidwell then

upheld the express Foraker Act tariff on mainland-island commerce. Writing only for himself,

Brown reasoned that Puerto Rico was “not a part of the United States within the revenue clauses

of the Constitution,” and thus outside the constitutional mandate for uniform tariffs “throughout

the United States.”93 According to Brown, Congress had chosen not to treat Puerto Rico as a

foreign country before 1900 even though the Constitution would have permitted it to do so.

As Degetau observed, “The decisions . . . produced a perplexity.”94 By skirting the

constitutional issues, they seemingly included Puerto Rico within the nation for one statutory

purpose but not for a different constitutional one. In Downes, held by contemporary observers

and their successors to be the most important Insular Case, no opinion garnered five votes. In

both cases, four justices dissented. Although the Dred Scott rule that “all the provisions of the

91 [Degetau], “Manifiesto” (“victoria”).92 Delima, 182 U.S. at 200 (1901).93 Downes, 182 U.S. at 287; U.S. Const. art. I, § 8, cl. 1.94 [Degetau], “Manifiesto” (“Las decisiones del Tribunal Supremo de los Estados Unidos . . . han producido una perplejidad”); Charles E. Littlefield, “The Insular Cases,” Southern Law Review 1 (1901): 478.

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Constitution extended of their own force to the territories” had sparked great debate during the

treaty-ratification debates, no majority rationale explained why it did not determine the result in

Downes.95 It clarified matters little that the Court soon declared Downes and DeLima applicable

to the Philippines.96

The most notable opinion was Justice Edward Douglas White’s concurrence in Downes,

which proposed a new doctrine of territorial nonincorporation.97 He asserted that Puerto Rico,

unlike prior territories, had not been incorporated by statute or treaty into the Union and would

not necessarily become a state. U.S. citizenship figured prominently in the analysis, with White

noting both the frequency with which the federal political branches had expressly extended the

status to previously acquired peoples and the silence of the Foraker Act on U.S. citizenship.98 He

concluded that the Constitution applied differently in Puerto Rico than in traditional territories,

yet provided few details beyond announcing that Puerto Rico was “foreign to the United States

in a domestic sense” while also U.S. land under international law.99 As to citizenship, White

followed Attorney General Griggs in imagining what might happen if “Citizens of the United

States discover an unknown island, peopled with an uncivilized race, yet rich in soil…. Can it be

denied that such right [to acquire] could not be practically exercised if the result would be to

endow the inhabitants with citizenship of the United States . . . . ?”100 Presuming U.S. citizenship

to be too consequential for some colonized peoples, he concluded that constitutional marriage of

annexation to naturalization would leave the United States “helpless in the family of nations.”101

As an emerging world power, the United States could not afford to sacrifice the authority of

95 Downes, 182 U.S., at 274 (Brown, J.); id., 291 (White, J., concurring).96 See, e.g., Sparrow, Insular Cases, 125-26, 129-32, 140.97 Downes, 182 U.S. at 287 (White, J., concurring).98 Id., 320-36, 340-41 (White, J., concurring).99 Id., at 311-12, 341 (White, J., concurring).100 Id., at 306 (White, J., concurring).101 Id.

25

other empires to acquire, subject, and exclude.

The justices who authored the opinions comprising the Downes majority also made clear

that skepticism about the fitness of some races, especially Filipinos, underlay their wariness.

Although many classed Puerto Ricans among civilized peoples, Justice White used his opinion to

guard the mainland from purportedly savage Filipinos rather than find ways to treat Puerto

Ricans and Filipinos differently. As the justice later told Coudert, because the case had

implications for the Philippines, where “he was much preoccupied by the danger of racial and

social questions,” he had been “quite desirous . . . that Congress should have a very free hand.”102

Providing the fifth vote for the judgments in both Downes and De Lima, Justice Brown shared

White’s concerns. He stressed that if annexation automatically brought collective naturalization,

native inhabitants, “whether savages or civilized,” would receive “all the rights, privileges and

immunities of citizens” notwithstanding “differences of race, habits, laws, and customs of the

people.”103 A “false step at this time might be fatal to the development of what Chief Justice

Marshall called the American empire.”104

The cases strained but did not rend Degetau’s faith in judicial independence, autonomy of

law, and the continuing validity of the Reconstruction Constitution. Praising the “high and serene

solution” upon which the justices had settled, Degetau claimed the Insular Cases were consistent

with his campaign to win official recognition of Puerto Ricans as U.S.-citizen residents of a U.S.

territory. Stressing the justices’ “practical unanimity that Porto Rico is ‘a territory of the United

States,’” he contended that Puerto Rico was no more “a ‘possession’ or . . . ‘colony’” than

102 Frederic R. Coudert, “The Evolution of the Doctrine of Territorial Incorporation,” Columbia Law Review 26 (1926): 832.103 Downes, 182 U.S., at 279, 282 (Brown, J.).104 Id., at 286.

26

Arizona.105 The analysis was a heroic one. While the Court had not foreclosed Degetau’s claims

to U.S. citizenship and eventual statehood, most people understood that Downes had marked

Puerto Rico as in some way subordinate and anomalous.

Charles Magoon viewed the cases quite differently, as evidence of a type of

administrative constitutionalism.106 The law officer for the Bureau of Insular Affairs within the

War Department crowed that his analysis had won over the Secretary of War, high-ranking

officials in other departments, the political branches, the electorate, and finally the Supreme

Court.107 Magoon was right that his legal arguments had found support with administrators and

elected officials and to some extent with the public and justices. But the Court had not made

Magoon’s views binding doctrine.

Offered an opportunity to reject or validate the emerging colonial governance of

noncitizen U.S. subjects and U.S. lands that would never become states, the Court balked.

Seeking a path between constitutional fidelity and exigencies of imperial governance, White

proposed the novel category of unincorporated U.S. territory that was neither foreign nor

domestic. Because the contours and content of the category were ambiguous and a majority of

the justices had yet to declare it to be binding doctrine, the cases left open many questions about

the relationship of Constitution to empire. With the Court seemingly disinclined to settle the

matter, administrators, lawmakers, and those outside federal employ found themselves in

105 “Porto Rico, Territory,” Buffalo Courier, 31 July 1901, available at CIHCAM 18/L1; [Degetau,] “Manifiesto” (“una <posesión> ó . . . una <colonia>”; “Arizona”).106 Cf. Jerry L. Mashaw, “Between Facts and Norms: Agency Statutory Interpretation as an Autonomous Enterprise,” University of Toronto Law Journal 55 (2005): 515-516 (observing that agencies more than courts are the institutions to push constitutional limits and be able to shape constitutional settlements by lobbying, testing waters, negotiating, and reaching accommodations).107 Charles E. Magoon, Reports on the Law of Civil Government in Territory Subject to Military Occupation by the Military Forces of the United States. Submitted to Hon. Elihu Root, Secreraty of War, by Charles E. Magoon, Law Officer, Bureau of Insular Affairs, War Department. Published by Order of the Secretary of War. 3d ed. (Washington, D.C.: GPO, 1903), 120.

27

positions to provide answers. Degetau moved forcefully to insure that his voice would be heard

when they did.

Degetau Urges Executive Officials into the Legal Breach

Implicitly, the Insular Cases had opened spaces for institutions other than courts to

maneuver.108 Degetau with sophistication and a sense of urgency. Failure would mean breaking

his promise to deliver U.S. citizenship to his constituents. The 1902 election was looming. The

longer success eluded him, the more likely it became that unwelcome practices would ripen into

precedent or that demeaning presumptions would calcify into conventional wisdom. Finding

receptive audiences for his claims remained the challenge. With a judicial test case unlikely to

produce a Supreme Court ruling in time for the next year’s campaign, Degetau returned his

attention to Congress and the executive agencies.

Among legislators, Degetau encountered a lack of interest in Puerto Rican affairs and a

proclivity to lump Puerto Ricans together with Filipinos. Even Degetau’s modest attempt to be

reclassified a Delegate rather than a Commissioner ran aground. The change would have

permitted Degetau to speak but still not vote in the House of Representatives. Its real import

would be the removal of an insulting distinction in nomenclature between the elected

representative from Puerto Rico and those from traditional U.S. territories. In pursuing the

108 On institution-level differences in approaches to law, see, Mark A. Graber, “Looking Off the Ball: Constitutional Law and American Politics,” manuscript (2007), http://digitalcommons.law.umaryland.edu/fac_pubs/381/, at 35; Keith Whittington, Political Foundation of Judicial Supremacy (Princeton, N.J.: Princeton University Press, 2007), 14-18, 22-23, 52, 287; Bradley W. Joondeph, “The Many Meanings of ‘Politics’ in Judicial Decision Making,” University of Missouri Kansas Law Review 77 (2008): 347-49; Thomas M. Keck, “Party Politics or Judicial Independence? The Regime Politics Literature Hits the Law Schools,” Law & Social Inquiry 32 (spring 2007): 532; Luke M. Milligan, “Congressional End-Run: The Ignored Constraint on Judicial Review,” Georgia Law Review 45 (2010): 245-48, 273 (collecting sources).

28

legislation, Degetau drew on the strong relationships he had cultivated with lawmakers interested

in Puerto Rican affairs, including Senator Foraker (of Foraker Act fame) and the members of the

House Committee on Insular Affairs.109 Yet, as Committee Chair Henry Cooper recounted, many

Congressmen believed that “Puerto Rico can’t be considered in itself” while the “Philippines

also has to be taken into account.”110 Degetau rejected the contention that Puerto Rican reforms

would necessarily become precedents for the Philippines. Indeed, he dismissed “the Philippines

and Hawaiians” with whom some “classed” Puerto Ricans as peoples with whom “we have

almost nothing in common.”111 Addressing both concerns in testimony before Cooper’s

committee, Degetau reiterated that U.S. military authorities promised Puerto Ricans (but not

Filipinos) U.S. citizenship and required Puerto Rican but not Filipino officeholders to take oaths

to uphold the U.S. Constitution, give allegiance to the United States, and renounce fidelity to

foreign nations.112

Frustratingly, the attempt to secure gains for Puerto Rico by distinguishing it from the

Philippines worked only in part. The House Committee recommended the reform, and Foraker

included it as part of a Senate bill on other Puerto Rican matters.113 But, as Democratic Senator

Benjamin Tillman of South Carolina pointed out in a contemporaneous debate, Republicans’

focus of late had been withholding rights from newly acquired peoples. Just ten years before,

109 House Comm. on Insular Affairs, Committee Reports, Hearings, and Acts of Congress Corresponding Thereto, 57th Cong. 34-39 (1903) (accompanying H.R. 14083); [Federico Degetau] to William Hunt, 16 May 1902, CIHCAM 3/VI/5; see also, e.g., Foraker to Degetau, 22 Dec. 1902; J.B. Foraker to Federico Degetau, 25 Apr. 1901, CIHCAM 2/IX/18; [Federico Degetau] to J. B. Foraker, 15 May 1901, CIHCAM 3/I/19; Cooper to Degetau, 8 Jul. 1901; [Degetau] to Cooper, 15 July 1901, CIHCAM 3/II/33. 110 [Degetau], Diary, 10 Dec. 1901 (“no se puede considerar á Puerto Rico en sí, sino que hay que tener en cuenta á Filipinas”); Biographical Directory of the United States Congress 1774 – Present, http://bioguide.congress.gov/biosearch/biosearch.asp (last visited Aug. 5, 2013).111 “Porto Rican’s Ambition.”112 House Comm. on Insular Affairs, Committee Reports, 34-39.113 Id., at 38-39.

29

Tillman recalled, Republicans had tried to pass an election bill that he feared was to have

“forever put the Southern whites under the heels of the negro majority.” But now, he gloated,

Republicans had begun “to emulate us of the South” by applying Democrats’ Black-

disfranchisement methods to “yellow people or negroes” in the newly acquired islands.114 Soon

after Tillman’s remarks, Foraker’s fellow Republican Senator John Spooner of Wisconsin

expressed uneasiness with Foraker’s proposal and the Senate struck the provision. Degetau’s

effort was doomed for the term.115 As Degetau’s friend Ramón Lopez wryly observed, “That

country is so big, and this one so small, that it is smart to always be pushing something, just so

they’ll remember us.”116

Degetau then turned to the executive branch, pursuing controversies that mattered to

Puerto Ricans and himself or appeared likely to provoke an official body to clarify Puerto

Ricans’ status. Access to federal civil-service jobs fulfilled both criteria. Federal law required

that many jobs in the classified service be distributed to citizens of states and traditional

territories in proportion to their, but citizens of Puerto Rico received no preference.117 The

resultant near-total exclusion of Puerto Ricans from the federal civil service was bad politics for

Degetau and his fellow Republicanos.118 By giving hiring preferences to those born on the

continent over the island born, the United States reenacted the Spanish system of patronage that

114 34 Cong. Rec. 5101.115 “Porto Rican Land Bills Passed Senate,” [News], 26 Jun. 1902, available at CIHCAM 11/L4.116 R. B. López to Federico Degetau, 6 Dec. 1903, CIHCAM 4/VII/7 (“Ese pais [sic] es tan grande, y este tan pequeño, que es preciso estar siempre promoviendo algo, para que se acuerdan de nosotros”); Degetau to Lopez, 31 May 1901.117 Eighteenth Report of the United States Civil Service Commission. July 1, 1900, to June 30, 1901 (Washington, D.C.: GPO, 1902), 48, 331.118 For a constituent who faced this exclusion, see [?] [Hernanchez?] to President of Civil Service, 18 Nov. 1901, CIHCAM 3/IV/3. See also J. Henna to Federico Degetau, 30 Nov. 1902, CIHCAM 3/IV/11.

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creole liberals had long opposed.119 Doing so marked the island and its people as separate and

subordinate. The lack of official opportunities mattered all the more because the Puerto Rican

political system (like that in the contemporary United States) depended heavily on patronage.120

As Republicanos told Degetau, “a clique of continental adventurers [in] official posts who are a

discredit to the American government [and] who in their country would be nobody” “are

preferred, and a consequent disgust here results.”121 Such complaints, which had long been

common among territorial residents (as among critics of Reconstruction) seeking home rule.122

Degetau brought the matter to the President123 and secured a separate discussion with a Civil

Service Commissioner. The result, Degetau reported, was that Puerto Ricans would receive a

proportional share of jobs in the federal classified service.124

119 David Ortiz Jr., Paper Liberals: Press and Politics in Restoration Spain (Westport, Conn.: Greenwood Press, 2000), 21-22; Astrid Cubano-Iguina, “Political Culture and Male Mass-Party Formation in Late-Nineteenth-Century Puerto Rico,” Hispanic American History Review 78 (1998): 641-42.120 See Scott C. James, “Patronage Regimes and American Party Development from ‘The Age of Jackson’ to the Progressive Era,” British Journal of Political Science 36 (2005): 39; Cablegram, Colton to Edwards, Mar. 1, 1910, MD NARA 350/5A/341/3377-49; Colton to Edwards, Mar. 2, 1910, MD NARA 350/5A/341/3377-57; Ortiz, Paper Liberals, 21-22; Cubano-Iguina, “Political Culture,” 641-42.121 [?] Rossy to Bonifacio Sanchez, 21 Apr. 1902, CIHCAM 4/II/147 (quote 2 (“una camarilla de aventureros continentales ocupando puestos oficiales que son un descrédito para el gobierno americano que nos rije: estos empleados que en su pais [sic] no serian [sic] nunca gente”)); J. Sifre to Federico Degetau, 1 Jul. 1902, CIHCAM 3/VI/30 (quote 3 (“Son preferidos los de allá y existe el consiguiente disgusto”)).122 See, e.g., Kermit L. Hall, “Hacks and Derelicts Revisited: American Territorial Judiciary, 1789-1959,” Western Historical Quarterly 12 (July 1981):284; Kenneth N. Owens, “The Prizes of Statehood,” Montana: The Magazine of Western History 37 (Autumn 1987): 2-3, 6-7; Roland L. De Lorme, “Westward the Bureaucrats: Government Officials on the Washington and Oregon Frontiers,” Arizona and the West 22 (Autumn 1980): 223.123 [Degetau], Diary, 18 Nov. 1901. 124 Id.; “Allotment of Clerks,” Washington Post, 4 Mar. 1902, 2. Two of the three Civil Service Commissioners were lawyers. See Eighteenth Report, 23; Biographical Directory of the United States Congress 1774–Present; William Dudley Foulke, A Hoosier Autobiography (New York: Oxford University Press, 1922), 13-14.

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Degetau found his best chance for rapid clarification of Puerto Rican status in a dispute

over passports. Federal law prescribed that “No passport shall be granted . . . for any other

persons than citizens of the United States.”125 Yet when Degetau sought a passport, he received

one “in which my American citizenship has been omitted.”126 So he protested to the State

Department. The potential challenge soon attracted the attention of the Coudert Firm, the lawyers

who had argued De Lima v. Bidwell and Downes v. Bidwell. With no ready way to dispose of the

claim, the State Department let it fester, an emblem of the Administration’s unwillingness to face

the full implications of empire. Degetau’s lawyer then reported the Coudert firm “anxious to take

up your case with me and make a test case of it.”127 But the effort stalled. Federal courts,

Degetau’s lawyer explained, would only compel federal executive officials to perform public

duties that they “are bound to perform without further question.” Where their inaction rested on

“an interpretation of the law,” as was true in Degetau’s case, the courts would not intervene.128

With judicial review of his passport protest unavailable, Degetau turned to his

Washington network. At its apex was Theodore Roosevelt, who had written Degetau that Puerto

Ricans were “my fellow Americans” shortly before ascending to the presidency following the

September 14, 1901 assassination of William McKinley.129 In November, Degetau secured a

meeting with President Roosevelt to discuss the citizenship status of Puerto Ricans and also

125 Revised Statutes of the United States Passed at the First Session of the Forty-Third Congress, 1873-1874, 2d ed. (Washington, D.C.: GPO, 1878), Title 47, § 4076, 786. On the history of U.S. passports, including limitation of them to U.S. citizens, see Jeffrey Kahn, “The Extraordinary Mrs. Shipley: How the United States Controlled International Travel Before the Age of Terrorism,” Connecticut Law Review 43 (2011): 819-88.126 [Degetau] to Cooper, 15 Jul. 1901.127 Henry Randall Webb to Federico Degetau, 15 Nov. 1901, CIHCAM 3/III/99.128 Henry Webb to Federico Degetau, 14 Aug. 1901, CIHCAM 3/III/61; Henry Webb to Ferderico Degetau, 10 Aug. 1901, CIHCAM 3/III/56.129 Roosevelt to Degetau, 24 Jun. 1901; “Mr. Roosevelt Is Now the President,” New York Times, 15 Sep. 1901, 1.

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scheduled meetings on the topic with Secretary of State John Hay and Justice Henry Brown.130

During the encounters, Degetau was chiding, encouraging, and impressive. He told Brown that

“Puerto Ricans are and desire to be American, although they believe that they have not been

done justice, they still have faith.”131 President Roosevelt asked Degetau to elaborate his views in

a letter.132

In the missive that Roosevelt requested, Degetau displayed legal sophistication and

political savvy. He did not mention of the Fourteenth Amendment, which was both the strongest

authority for the U.S. citizenship of Puerto Ricans and an authority that many presumed applied

to Puerto Ricans and Filipinos in the same way. Instead, he laid out legal arguments for

recognition of Puerto Ricans as U.S. citizens that did not apply to Filipinos.133 The Treaty of

Paris recognized some Puerto Ricans “as having accepted the nationality of the territory in which

they resided,” while the Insular Cases had declared Puerto Rico to be “a territory of the United

States.” Presuming that U.S. nationality and U.S. citizenship were identical, he reasoned that at

least some Puerto Ricans were U.S. citizens. Because recent legislation specific to Puerto Rico

had treated “all inhabitants” of the island as a single group, he continued, the U.S. citizenship of

130 [Degetau], Diary, 18, 25 Nov. 1901. On Hay’s legal training, see Hay, John, http://www.brown.edu/Administration/News_Bureau/Databases/Encyclopedia/search.php?serial=H0060 (1993), reprinted from Martha Mitchell, Encyclopedia Brunoniana (Providence, R.I.: Brown University Library, 1993)..131 [Degetau], Diary, 18 Nov. 1901 (“si los puertoriqueños [sic] querian [sic] volver á España”; “Los puertoriqueños [sic] son y desean ser americanos, aunque creen que no se les ha hecho justicia, pero confían”).132 Id.; H.W. Brands, T.R: The Last Romantic. (New York: Basic Books, 1998), 110 (noting that Roosevelt was a Columbia Law School alumnus). 133 “Federico Degetau Gonzalez,” newspaper unknown, n.d., available at CIHCAM 18/L1/195 (quoting [Federico Degetau] to [Theodore Roosevelt], 7 Dec. 1901). In 1902, Degetau’s first two arguments became potentially applicable to the Philippines following enactment of the Philippine Bill of 1902, Pub. L. No. 235, 32 Stat. 691 (1902), which used similar language to that used in the Foraker Act.

33

some islanders had become the U.S. citizenship of the rest.134 Degetau rested a separate argument

on legislation lumping together mainlanders and Puerto Ricans residing on the island as “the

people of Porto Rico.” Such a “political body” could not be comprised both of U.S. citizens and

citizens “of distinct nationality.” Instead, the statute assumed that Puerto Ricans were already

U.S. citizens.135 Finally, Degetau reminded Roosevelt that Puerto Ricans had cooperated with

U.S. rule during Spanish sovereignty after General Guy Henry promised them “protection as

citizens of the American Union.”136 The “only constitutional and just interpretation” is that

Puerto Ricans are “American citizens.”137

Rather than respond to Degetau’s

passport protest by answering the claims

made in his letter, U.S. officials took

extraordinary evasive action. The Secretary

of State stripped the dispute of material

consequences by extending Puerto Ricans

abroad “the same protection of person and

property as is accorded to the native-born

citizens of the United States.” Then he and

Roosevelt won legislation authorizing

passports for U.S. insular residents

134 “Federico Degetau Gonzalez” (“habían aceptado la nacionalidad del territorio en que residían”; “un territorio de los Estados Unidos”; “todos los habitantes”).135 Id. (“el pueblo de Puerto Rico”; “una entidad o cuerpo político no puede constituirse con ciudadanos americanos y otros miembros de distinta nacionalidad o distinta ciudadanía”).136 Id. (“protección como ciudadanos de la Unión Americana”).137 Id. (“La única interpretación constitucional y justa de la ley es . . . que las palabras ciudadanos de Puerto Rico es una designación de ciudadanía americana”).

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An Insular passport from 1907. After passage of the 1902 law, Puerto Ricans continued to receive passports that declined to identify

them as U.S. citizens. Source: Ancestry.com (reproducing MD NARA 59, Bureau of

Citizenship Entry A1 511, AISC 1187483)

regardless of U.S. citizenship.138 The State Department, the President, and both houses of

Congress thus confirmed their commitment to holding Puerto Ricans in status limbo. Only the

judiciary and administrators not responsible to Secretary of State Hay appeared even potentially

receptive to Degetau’s entreaties.

To gain access to agencies other than the State Department and have judicial recourse in

the event of an adverse decision, Degetau borrowed a page from the Insular Cases of 1901 and

challenged an import duty. After shipping paintings by a Puerto Rican artist to himself from

France, he asked the Treasury Department for the exemption from customs duties available on

“works of art, the production of American artists.” The Secretary of the Treasury referred the

matter to the Attorney General, who had himself digested lessons from Downes. Rather than

create an appealable issue, he conceded that Puerto Rican artists were American artists. For

Degetau, who equated nationality with citizenship, this was a victory. But, the Attorney General

cautioned, the status of American Indian artists illustrated that “it is clearly not inconceivable for

a man to be an American artist . . . and yet not a citizen of the United States.” 139 Degetau, of

course, was loath to concede such a cross-racial analogy.

Several weeks later, when federal lawmakers finally passed an organic act for the

Philippines, they eroded the basis for any analogy between Puerto Ricans and Filipinos. As with

the 1899 declaration disclaiming any Senate intention to naturalize Filipinos or permanently

annex the Philippines and the decision to provide Puerto Rico an organic act before the

138 See “A Letter from Mr. Degetau,” Puerto Rico Herald, 11 Jan. 1902, 4; “Civil Service in Porto Rico,” Washington Post, 10 Feb. 1902, 4; H.R. 8129, in H.R. Rep. No. 57-559 (1902), available at CIHCAM 3/V/20; Theodore Roosevelt, Rules Governing the Granting and Issuing of Passports in the Insular Possessions of the United States (July 19, 1902), available at MD NARA 350/5B/837/19929; [Degetau], Diary, 25 Nov. 1901, Feb. 1902; Law of 14 June 1902, Pub. L. No. 158, 32 Stat. 386 (1902); see also S. 2298, 57th Cong. (1902), available at CIHCAM 11/L4; 35 Cong. Rec. 4992-95, 5697-99, 6588-89 (1902).139 24 Op. Att'y Gen. 41, 40, 42-44 (1902); “Porto Rican an American Artist,” Washington Post, 17 May 1902, 11.

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Philippines, the July 1902 legislation placed the Philippines at a structural distance from the

United States similar to, yet slightly greater than, that for Puerto Rico.140 Like Puerto Ricans,

Filipinos would elect a lower legislative chamber but not their executive or upper chamber;141

they became “citizens of the Philippine Islands”;142 and their goods were subject to a tariff upon

arrival in the United States.143 Unlike that for Puerto Rico, the tariff on most Filipino goods was

as high or nearly as high as that on goods from foreign countries. While the Puerto Rico

government ended the tariff on trade between that island and the mainland in mid-1902, the

Philippines Organic Act offered the Filipino government no similar option.144 Though Puerto

Rico had adopted U.S. currency, the Filipino government could now coin its own money.145 In a

move that shaped litigation over the relationship of Constitution to empire, the Act denied the

right to a jury to Filipinos even as it statutorily extended Filipinos much of the remainder of the

Bill of Rights.146

By mid-1902, it was clear that Degetau’s tactics had serious limitations. He had

succeeded in bringing before U.S. officials numerous disputes over whether Puerto Ricans were

U.S. citizens and whether Puerto Rico was a traditional U.S. territory. Some cases had brought

islanders valuable rights. But U.S. officials had not given Degetau all the mainlander-held rights

that he sought. They resolutely declined to clarify Puerto Ricans’ U.S. citizenship and territorial

status. Administrators in particular had not stepped into the breach as Degetau had hoped.

To add insult to injury, Degetau’s efforts to sway public and official opinion did little to

140 E.g., 35 Cong. Rec. 2096.141 Philippine Bill of 1902, secs. 1, 7, 32 Stat. 691, 691, 693-94 (1 July 1902).142 Id., sec. 4, 32 Stat., at 692.143 Id., sec. 2, 32 Stat., at 692; Act of March 8, 1902, sec. 2, 32 Stat. 54, 54.144 Philippine Bill of 1902, secs. 2, 84, 32 Stat., at 692, 711; Act of March 8, 1902, sec. 2, 32 Stat. 54, 54; J.H. Hollander, “The Finances of Porto Rico,” Political Science Quarterly 16 (Dec. 1901): 553.145 Philippine Bill of 1902, secs. 76-83, 32 Stat., at 710-711.146 Id., sec. 5, 32 Stat., at 692-93.

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alter mainlanders’ depictions of Puerto Ricans as backward and of mixed race. Anti-imperialist

Roman Catholic Bishop John Spalding of Peoria reflected the trend when, despite the

Catholicism that predominated in much of the Philippines and Puerto Rico, he announced in

mid-1902 that in “the tropics the race is and, probably always will be, indolent, ignorant, weak

and sensual.”147 Degetau responded publicly and with indignation, but insulting depictions

continued.148 The year 1902 marked the midpoint between the original 1899 publication of

William S. Bryan’s popular Our Island and Their People and its oversized 1905 reissue that

ensured its continuing public presence. The collection of photographs and essays made the

island’s poverty and its residents’ African ancestry into a marketable spectacle of the exotic. One

photo featured a naked dark-skinned boy on a public road. Rather than linger on the deprivations

that lay behind the image, the book cheekily remarked that the child was “in full Porto Rican

costume for young gentlemen of his age.”149 For Degetau, the failing of such publications lay in

their inaccuracies. Poor and dark-skinned children did not represent what he viewed as the

essence of Puerto Rico. He himself did. That too little rather than too much attention might be

being paid to the worst off on the island was not his central concern.

147 “Prelate Vexes Porto Ricans,” Detroit Journal, 2 June 1902, available at CIHCAM 18/L1.148 Id.149 William S. Bryan ed., Our Islands and Their People, vol. 2 (New York : N.D. Thompson Publishing Co., 1899), 408; William S. Bryan ed., Our Islands and Their People, vol. 2 (New York: N.D. Thompson Publishing Co., 1905), 408; Thompson, “Aesthetics and Empire.”

37

Race and the Limits of Degetau’s Paternalism

Degetau aimed to be the representative of Puerto Rico in the fullest sense of the word,

fulfilling his constituents’ aspirations, exemplifying Puerto Rican civilization, and transforming

his countrymen into U.S. citizens through claims making.150 At the same time, he reinforced his

paternal perch atop Puerto Rican racial hierarchies. His elitism alienated Degetau from

constituents, making it difficult for him to perceive and represent their interests. It led Degetau to

accept and even promote depictions of many of his countrymen as akin to stigmatized U.S.

communities. Because mainlanders confounded Degetau by judging Puerto Rico on its average,

mixed-race and desperately poor residents rather than on its best men, the approach could

undermine Degetau’s case for Puerto Rican entitlement to U.S. citizenship. Degetau’s reaction to

the plight of Puerto Ricans in Hawai‘i and his support of enrollment of Puerto Ricans into U.S.

schools for American Indians and descendants of slaves exemplified this damaging dynamic.

Degetau was more patrician than republican. His racism limited his sympathy and efforts for

islanders.

Drawbacks of Degetau’s particular brand of paternalism became evident when the plight

of Puerto Ricans working in Hawai‘i returned to the news. As more than 1,000 left their jobs to

seek better terms of employment, police arrested them by the hundreds, primarily on charges of

theft, prostitution, and vagrancy. According to one Puerto Rican newspaper, “our poor

countrymen hid in the woods where they were persecuted by gunfire and set after with a pack of

hunting dogs.”151 When Degetau’s constituents raised concerns, however, he expressed

150 Kenneth W. Mack, Representing the Race: The Creation of the Civil Rights Lawyer (Cambridge, Mass.: Harvard University Press, 2012).151 “De Hawaii a Puerto-Rico,” La Democracia, 27 Dec. 1901 (“al huir nuestros pobres paisanos, refugiándose en los bosques, se les persiguió á tiros y se lanzó contra ellos una jauría de perros de caza”); “Porto-Ricans ‘Vagrant,’” Puerto Rico Herald, 12 Oct. 1901, available at CIHCAM

38

Source: William S. Bryan ed., Our Islands and Their People (1899), 408

skepticism.152 Like other affluent Puerto Ricans, he considered worker-planter relations to be

private contract matters either beyond state purview or to be disposed of in local civil courts. He

asked the State Department to investigate only arrests, prosecutions, and convictions.153

Hawai‘ian officials were once again quick to provide assurances that Degetau was primed to

accept. This time, Degetau revealed, a Hawai‘ian official also told him that he “sought to have

the emigrants’ citizenship rights recognized so that they could vote in Hawaii[,] that he was

disposed to prepare an appeal to the Supreme Court in a case upholding a sentence of Hawaiian

courts refusing to recognize Puerto Ricans as U.S. citizens, and that . . . he hoped that I would

argue the case . . . , understanding that this would guarantee success.”154 Degetau’s vanity and

faith in legal forms prompted him to conclude that “it doesn’t seem likely that were the

complaints true, the planters would manifest such interest in investing Puerto Ricans with

constitutional guarantees and in providing them the vote.”155 In a way, he was right. No test case,

broad rights, or franchise materialized in the wake of the investigation.

17/III/1 (citing the New York World); W.O. Smith to Henry Cooper, 22 May 1902, CIHCAM 3/VI/48; Cooper to [State Department?], 27 May 1902; L.A. Andrews to A. M. Brown, 27 Jun. 1902, CIHCAM 3/VI/48; A.M. Brown to S.B. Dole, 10 Jul. 1902, CIHCAM 3/VI/48; Sanford Dole to Secretary of the Interior, 4 Sep. 1902, CIHCAM 3/VI/48; Iglesias, Luchas I, 261.152 [Degetau] to Valls de la Log, 25 Apr. 1902; [Degetau], Diary, 23 Apr. 1902; John Hay to Federico Degetau, 12 May 1902, CIHCAM 3/VI/4; Copy, “Well Treated Over in Hawaii,” San Juan News, 8 May 1902, CIHCAM 3/VI/48.153 [Degetau] to Valls de la Log, 25 Apr. 1902; [Degetau], Diary, 23 Apr. 1902; Hay to Degetau, 12 May 1902; “Well Treated.”154 [Degetau] to Valls de la Log, 25 Apr. 1902 (“su interés porque los emigrantes tuvieran sus derechos de ciudadanos reconocidos, para que pudieran ejercer el derecho electoral en el Hawaii[,] que estaba dispuesto á preparar un recurso ante el Tribunal Supremo en el caso de que se confirmase una sentencia de los tribunales de aquellas Islas negandose [sic] á reconocer la ciudadanía americana de los puertoriqueños [sic] y que . . . deseaba que yo fuese quien arguyese el caso . . . , por entender él que esta era una garantía de éxito.”); “Well Treated.”155 [Degetau] to Valls de la Log, 25 Apr. 1902 (“no parece verosimil [sic] que si los hechos denunciados fueran exactos, los plantadores se manifestaran tan interesados en investír [sic] con las garantias [sic] constitucionales y de proveer del voto á [ellos]”); “Desde Washington,” La Correspondencia, n.d., available at CIHCAM 18/L1; [Degetau], Diary, 23 Apr. 1902; Hay to Degetau, 12 May 1902; “Well Treated”; Stanley L. Engerman, “Contract Labor, Sugar, and Technology in the Nineteenth Century,” Journal of Economic History 43 (Sep. 1983): 635-659.

39

Soon afterward, a group of Puerto Rican men in Hawai‘i wrote to express their

disappointment. In declining to trust or assist them, they charged, Degetau had failed as the

representative of a nurturing state, a fellow victim of U.S. racialization, an heir to emancipatory

liberalism, and a participant in Puerto Rican honor culture. Carefully navigating cross-cutting

implications of dependence, they declared that “Puerto Rico is humanitarian and patriotic, so

feels sorry for its sons and daughters just as a [loving?] mother would for the son she adores.”

The letter writers claimed the mantle of maturing masculinity, casting their current dependency

as a condition to be outgrown with the assistance of a maternal government. Tugging at

Degetau’s racial and liberal-paternal pride, they described how Hawai‘ian leaders acted “as in

the times of the slaves and masters of plantations” toward Puerto Ricans, whom they deemed so

inferior to the “Saxon race” that they shared the “dishonor of . . . the Asian.” Degetau, they

hoped, would defend Puerto Rican racial honor and reenact the liberal achievement of

emancipation. The men also merged honor culture and national solidarity. As the representative

of Puerto Rico, they charged, Degetau had failed in his duty to trust “the honorable and sincere

word that a dozen honorable workers offered under sacred oath,” Hawai‘ian officials’ denials

notwithstanding. A Puerto Rico led by best men, the men argued throughout the letter, had failed

its own constituents.156

156 Manuel Rojas et al. to Degetau, 24 Jun. 1903, CIHCAM 4/VII/51 (“Pto Rico es humanitario, es [patriota?], siente por sus hijos como una [amanbsonia?] madre por su hijo adorado”; “raza sajona”; “El caracter [sic] poco digno de esta gente”; “al asiático”; “[suena?] a tiempo para el esclavo y los dueños de plantaciones”; “la frace [sic] honrada y sincera que bajo un juramento sagrado profieren una docena de trabajadores honrados”; see also Carmelo Montalvo to [Federico Degetau], [Jun. 1903?], CIHCAM 4/III/233. For a letter from a Puerto Rican in Mexico who believed that Degetau should act as a kind of consul for islanders abroad, see [Loren?] [Proscini?] to Federico Degetau, 6 Feb. 1902, CIHCAM 3/V/15; Sotero Rosario to Federico Degetau, 28 Mar. 1902, CIHCAM 3/V/39. On cultural formation, conceptualization of the homeland, and claims making among immigrants who engage in unidirectional or circular migrations, see George J. Sánchez, Becoming Mexican American: Ethnicity, Culture, and Identity in Chicano Los Angeles, 1900-1945 (New York: Oxford University Press, 1993); Benjamin Heber Johnson, Revolution in Texas: How a Forgotten Rebellion and Its Bloody

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The starkest example of how Degetau’s paternalistic impulses impeded his attempts to

secure Puerto Ricans full membership in the United States was his support for Puerto Rican

enrollment in the Tuskegee Institute and the Carlisle School, both of which served racial groups

perceived as requiring uplift. Tuskegee and Carlisle traced their roots to the Hampton Institute,

which Civil War veteran Samuel Armstrong opened in Virginia in 1868 to offer former slaves

vocational and agricultural education. Booker T. Washington, among the Institute’s top pupils,

became principal of the new Tuskegee Institute on Armstrong’s recommendation in 1881. Cast

in the Hampton mold, Tuskegee trained Black teachers. Richard Pratt, the founder of Carlisle,

came to education after “subduing” Indians as an army officer between 1867 and 1875. Seeking

to provide Native prisoners with educational opportunities, he initially brought his wards to

Hampton. Eventually, he decided that because Blacks faced more prejudice than American

Indians, his students needed a separate school and opportunities to socialize with whites. With a

mix of charitable and federal support, Pratt launched and maintained Carlisle as an English-

language vocational school. He was committed to using the school’s authority over its students

to integrate them into mainstream white U.S. culture, an approach he termed “acculturation

under duress.”157

Suppression Turned Mexicans into Americans (New Haven, Conn.”: Yale University Press, 2003); Marc C. McLeod, “Undesirable Aliens: Race, Ethnicity, and Nationalism in the Comparison of Haitian and British West Indian Immigrant Workers in Cuba, 1912-1939,” Journal of Social History 31 (spring 1998): 599-623; Barry Carr, “Identity, Class, and Nation: Black Immigrant Workers, Cuban Communists, and the Sugar Insurgency, 1915-1934,” Hispanic American Historical Review 78 (Feb. 1998): 83-116; Winston James, Holding Aloft the Banner of Ethiopia: Caribbean Radicalism in Early Twentieth-Century America (New York: Verso, 1998); Irma Watkins-Owens, Blood Relations: Caribbean Immigrants and the Harlem Community, 1900-1930 (Bloomington: Indiana University Press, 1996); Silvio Torres-Saillant, “The Tribulations of Blackness: Stages in Dominican Racial Identity,” Callaloo 23 (summer 2000): 1086-1111; Nina Glick Schiller and Georges Eugene Fouron, Georges Woke up Laughing: Long-Distance Nationalism and the Search for Home (Durham, N.C.: Duke University Press, 2001).157 José-Manuel Navarro, Creating Tropical Yankees: Social Science Textbooks and U.S. Ideological Control in Puerto Rico, 1898-1908 (New York: Routledge, 2002), 120-121 (quote

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Washington and Pratt saw opportunities in U.S. annexation of Puerto Rico, and U.S.

officials on the island saw opportunities in Tuskegee and Carlisle. As early as August 1898,

Washington trumpeted the potential of Tuskegee as an ingredient in U.S. empire. “One-half of

the population” in newly occupied lands was “composed of mulattoes or Negroes” who

“need . . . the strength that they can get by thorough intellectual, religious and industrial

training.” In governing this new population, the United States had a unique advantage: “The

experience that we have passed through in the Southern States during the last thirty years in the

education of my race, whose history and needs are not very different from the history and needs

of the Cuban and Porto Ricans . . . .” Offering Tuskegee’s services, Washington pursued the

prestige and funds sure to follow. As the Washington Post wryly noted, it would cost $150 to

cover tuition and expenses for an individual student. As Tuskegee President, Washington

“invites anybody who feels like helping . . . to write him. We suspect that the inclosure of a

check in the first letter would do no harm.” By the end of 1898, Tuskegee had its first Puerto

Rican student.158

U.S. officials moved quickly to expand Puerto Rican enrollment in Tuskegee and Carlisle

as part of what they understood to be their civilizing mission. In early 1899, John Eaton brought

decades of experience in southern, post-emancipation U.S. education to Puerto Rico as its first

Superintendent of Public Schools.159 Formerly Associate Commissioner of the Freedmen’s

1), 115-119; Pablo Navarro-Rivera, “Acculturation under Duress: The Puerto Rican Experience at the Carlisle Indian Industrial School 1898-1918,” Centro Journal 18, no. 1 (2006): 222-259 (quote 2); “Civilizing Indian Youth,” New York Times, 16 Mar. 1880, 2; “The Indian at School,” Washington Post, 9 Nov. 1884, 3.158 Booker T. Washington, “Industrial Education for Cuban Negroes,” New York Times, 16 Aug. 1898 (quote 1); Sonia M. Rosa, “The Puerto Ricans at Carlisle Indian School,” KACIKE: The Journal of Caribbean Amerindian History and Anthropology, http://www.kacike.org/SoniaRosa.html (28 Dec. 2003) (quote 3); “A Word from Booker Washington,” Washington Post, 18 Aug. 1898, 6. (quotes 2, 4).159 “Eaton to Take Charge,” Washington Post, 31 Jan. 1899, 8; Henry K. Carroll, Report on the Industrial and Commercial Condition of Porto Rico (San Juan, P.R.: National Endowment for

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Bureau, Superintendent of Tennessee Public Instruction, and U.S. Commissioner of Education,

he had substantially influenced schooling in the U.S. South. He also frequently visited Carlisle,

whose newspaper named him among the school’s “staunchest supporters.” Eaton used his new

office to promote Puerto Rican enrollment at the school. After serious illness cut short Eaton’s

tenure, his successor Martin Brumbaugh expanded Eaton’s general policy. Brumbaugh produced

dozens of scholarships so Puerto Ricans could attend vocational schools on the Tuskegee model

and160 in 1901-1902 pressed Tuskegee and Carlisle on how many students they could accept.

Soon, nearly 20 Puerto Rican students had enrolled at Tuskegee and more than 40 had started at

Carlisle.161

In line with his paternalistic impulses, Degetau celebrated the schools that were willing to

accept Puerto Rican pupils. He knew that mainland degrees were valuable, and he encouraged

and sometimes facilitated the ambitions of islanders to pursue them. While many stateside

schools required a fluency in English and an annual tuition beyond the reach of aspirants, the

Tuskegee Institute and Carlisle Indian School did not.162 Degetau also agreed with Washington,

the Humanities et al., 2005 [1899]), 616; Aida Negron de Montilla, La americanización en Puerto Rico y el sistema de instrucción pública 1900-1930 (San Juan: Editorial de la Universidad de Puerto Rico, 1976) 22-23; General Order No. 12, Headquarters Department of Porto Rico, 6 Feb. 1899, MD NARA 350/5A/21/168:4; Rosa, “Puerto Ricans at Carlisle.”160 Rosa, “Puerto Ricans at Carlisle”; “Cubans in a Southern Negro School,” New York Times, 2 Dec. 1898, 3; see also Navarro, Tropical Yankees; Navarro-Rivera, “Acculturation”; An Act to Provide for the Education of Certain Young Men and Women in the United States, 1 P.R. Stat. 12, 13 (30 Jan. 1901). Scholars studying Puerto Rican students at Carlisle and Tuskegee have focused on the cultural coercion that these students faced. Navarro, Tropical Yankees; Navarro-Rivera, “Acculturation”; Rosa, “Puerto Ricans at Carlisle.” I gratefully draw on this work to examine Degetau’s responses to that coercion.161 Victor S. Clark, “Porto Rico under American School System,” Chicago Daily Tribune, 13 May 1900, 41; “Porto Rico Nomination,” New York Times, 5 Jun. 1900, 7; Navarro, Tropical Yankees; Navarro-Rivera, “Acculturation”; Rosa, “Puerto Ricans at Carlisle.” 162 C[illegible] de Denton to Federico Degetau, 14 Sep. 1903, CIHCAM 4/V/285; Isabel Gonzalez to Federico Degetau, 10 Apr. 1904, CIHCAM 5/I/5; see also, e.g., Luis Gonzalez to Federico Degetau, 5 Feb. 1903, CIHCAM 3/VII/35; Washington, “Industrial Education”; A. T. Stuart to Federico Degetau, 10 Feb. 1903, CIHCAM 3/VII/45.

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Pratt, Eaton, and Brumbaugh that many Puerto Ricans required uplift. Seeing it as his paternal

responsibility to facilitate the process, he quickly took on a role akin to prominent mainland

supporters of Carlisle, Tuskegee, and Hampton. With Carlisle, he offered public praise, toured as

a representative of Puerto Rico, joined U.S. senators as an invited guest at commencement, and

worked with high U.S. officials to secure federal legislation to promote Puerto Rican enrollment.

He visited Tuskegee, met with island students there, and exchanged letters and gifts with Booker

T. Washington. He also promoted Puerto Rican enrollment at Hampton.163

Degetau’s attempt to perform Puerto Rican civilization by contributing to the uplift of his

ostensible inferiors had the unintended consequence of strengthening whites’ racial association

of Puerto Ricans with Blacks and American Indians. Advocates of Tuskegee and Carlisle

benefitted from reinforcing the parallels, which observers were in any case quick to draw.

Washington argued that Puerto Ricans were less civilized and less American than mainland

Blacks, but also capable of fulfilling obligations of citizenship if they trained at Tuskegee. He

told the Los Angeles Times that one island student was “quite savage” when he arrived but that

after “one of our boys, [a] young American[,] . . . gave him a good thrashing,” he “changed his

methods.” In this way, Washington recounted, the Puerto Rican student was beaten into

citizenship, as others could be too. In April and May 1901, the New York Times ran articles with

titles like “Porto Rican Boys to Study at Carlisle” that reported dozens of islanders enrolling at

163 “Una visita á Carlisle,” La Correspondencia, 17 Aug. 1901; R.H. Pratt to Federico Degetau, 8 Aug. 1901, CIHCAM 3/III/52; R.H. Pratt to [Federico Degetau], 19 Jan. 1903, CIHCAM 3/VII/13; “Annual Exercises at Carlisle,” Washington Post, 3 Feb. 1902, 3; Pratt to Degetau, 20 Dec. 1902; R.H. Pratt to Federico Degetau, 24 Jan. 1903, CIHCAM 3/VII/17; Stuart to Degetau, 10 Feb. 1903; Eugenio Lecompte to Federico Degetau, 13 Feb. 1903, CIHCAM 3/VII/47; Booker T. Washington to Ana Moreno Degetau, 16 May 1903, CIHCAM 4/III/182; Antonio Trujillo to Federico Degetau, 19 May 1903, CIHCAM 4/III/186; Booker T. Washington to Federico Degetau, 28 May 1903, CIHCAM 4/III/198; G.w.a. Johnston to Federico Degeteau, 20 May 1903, CIHCAM 4/III/187. Elitism like that Degetau displayed could sometimes help intended beneficiaries, as when years later Carlisle surveyed alumni and responding Puerto Ricans reflected positively on having attended. Navarro-Rivera, “Acculturation.”

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federal expense.164 Puerto Rican students and parents were quick to grasp the implications of

such associations. As Angela Rivera-Tudó complained in an attempt to secure what she saw as

her rightful place in racial hierarchy, it was “an unforgivable injustice . . . choosing the only

college they had for educating and civilizing the savage Redskin Indians for also educating and

‘civilizing’ the wretched Puerto Ricans.”165

At Carlisle, the conflict between Degetau’s goal and the reality of the situation became

acute. Initially, Carlisle had funded Puerto Rican enrollment through its general federal

appropriation, but even congressional supporters deemed that practice “questionable.”166 In

January 1903, Pratt and Senator Foraker failed to win express funding. Pratt then asked Degetau

to urge upon the “Indian committee” that “there is some Indian blood among your Porto Ricans

and on that ground there is a claim for them.” From Degetau’s perspective, the request was

strange. After all, Degetau did not seek tribal status for Puerto Ricans, but U.S. citizenship, a

relationship to the United States still not universal among American Indians. Previously, he had

dismissed the argument Pratt now proposed, describing a near-total Spanish genocide of

indigenous Puerto Ricans that belied any claim of native blood. But the request was timely. Only

five Puerto Ricans arrived at Carlisle after 1901, and, as federal money ran dry, those already

there left. By contrast, the Puerto Rican government continued to offer scholarships to attend

Tuskegee. Puerto Rican students attended there at least into 1915.167 Recognition of island

164 “The Negro’s Future,” Los Angeles Times, 17 Dec. 1899, 16; “Porto Ricans Coming Here to Study,” New York Times, 28 Apr. 1901, 23; “Porto Rican Boys to Study at Carlisle,” New York Times, 17 May 1901, 5.165 Rosa, “Puerto Ricans at Carlisle” (quoting Angela Rivera-Tudó, “The Puerto Rican Indians,” trans. Vilma Irrizary, La Correspondencia de Puerto Rico, 3 Jan. 1931, 4); see also Navarro-Rivera, “Acculturation”; Arturo Schulze to Federico Degetau, 13 Aug. 1901, CIHCAM 3/III/59.166 36 Cong. Rec. 1426.167 R.H. Pratt to Federico Degetau, 15 Mar. 1904, CIHCAM 4/IX/14 (quotes); 36 Cong. Rec. 1349-50, 1426; “Indian Bill Is Passed,” Washington Post, 30 Jan. 1903, 4; “Riverside: Filipinos in Indian School,” Los Angeles Times, 9 Feb. 1903, 12; Degetau, Political Status of Porto Rico; see also Pratt to Degetau, 20 Dec. 1902; Pratt to Degetau, 24 Jan. 1903; Navarro-Rivera,

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blackness thus remained central to Puerto Rican educational policy long after Degetau’s term as

Resident Commissioner reached its end.

* * * * *

As clarification of Puerto Ricans’ status and

favorable evaluations of their racial fitness continued to

elude Republicanos, it became clear that Degetau had

been overoptimistic about prospects for full and

immediate belonging within the United States.168 The

New York Times captured this hostile situation in an

editorial cartoon that portrayed Uncle Sam as the

harried white guardian of Cuba, Porto Rico, and the

Philippines. The three island infants of color were

identical in dress, skin tone, and physique. Puerto Rico,

the more docile of the three, occupied the perch closest to Uncle Sam’s heart. Their older

brother, “American negro,” sat on the floor, seeking the uncle’s care. Similarities between the

children suggest that the islanders resembled and lagged behind African Americans. Uncle

Sam’s slouch and distress portended further abandonments. For those willing to look, the

prospects for the kind of belonging that Degetau and his colleagues sought already appeared

bleak.

“Acculturation”; Navarro, Tropical Yankees, 125 and n. 77; “Tuskegee Institute Opens 35th Session,” Chicago Defender (Big Weekend Edition), 25 Sep. 1915, 4; Codified School Law of Porto Rico, 2 P.R. Stat. 60, 87 (12 Mar. 1903); Appropriations Act of 28 Mar. 1914, 7 P.R. Stat. 183, 192; Act of 12 Apr. 1917, 8 P.R. Stat. 154, 156.168 Barbary Y. Welke, Law and the Borders of Belonging in the Long Nineteenth Century United States (Cambridge: Cambridge University Press, 2010).

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Source: New York Times, 5 July 1903, A9

Republicanos divided over whether law or politics was the more promising strategy. The

party committed itself to membership in the U.S. Republican Party.169 Degetau publicly

disagreed, contending that noncitizens could not honorably join U.S. national parties.170 Instead,

he planned to tilt with federal entities over legal status, a strategy that co-partisans judged

quixotic.171 As he wrote, “[my] word of honor” “compels me again to solicit from my colleagues

the honor of being their candidate and from the electorate the honor of being reelected to

continue the work I have undertaken in favor of [both] our American citizenship [and] the

admission of Puerto Rico into the Union as an organized Territory to become in the not-distant

future a state.”172 In the last third of 1902, Republicanos nominated him for another term as

Resident Commissioner.173

When the polls closed, Federales had withstood resurgent pro-Republicano political

violence to win a large minority of seats in the House of Delegates.174 Although Degetau won

reelection, Federales substantially reduced the lopsided margin by which he had won in 1900.175

For Degetau, two years of using methods other than lawsuits to argue questions related to

citizenship before federal officials had neither produced the recognition of Puerto Ricans as U.S.

citizens that Degetau sought nor improved Degetau’s electoral standing on the island. Clearly,

169 Informe de los delegados del Partido Republicano de Puerto Rico ante la Convención Nacional Republicana celebrada en Chicago, en 21 de junio de 1904 ([San Juan?], P.R.: Tipografía “El País,” 1904), available at CIHCAM 6/L8, 5-6.170 Copy, [Federico Degetau] to Teodoro Moscoso, 2 Oct. 1903, CIHCAM 4/V/309.171 Draft, [Federico Degetau] to Pedro Besosa, 6 Sep. 1902, CIHCAM 3/VI/49172 [Degetau] to Besosa, 6 Sep. 1902 (“compromiso de honor”; “me obligan á solicitar de nuevo de mis correligionarios el honor de ser su candidato, y del cuerpo electoral el de ser reelegido para continuar la labor emprendidad [sic] en favor de nuestra ciudadanía americana; de la admisión de Puerto-Rico en la Unión como un Territorio organizado para ser en dia [sic] no lejano uno de tantos Estados”)173 Ramón Lebrón to Federico Degetau, 10 Oct. 1902, CIHCAM 3/VI/57174 Fernando Bayron Toro, Elecciones y partidos políticos de Puerto Rico (1809-1976) (Mayagüez, P.R.: Editorial Isla, Inc., 1977), 119-21; Negrón Portillo, Las turbas, 149, 151.175 Bayron Toro, Elecciones, 119-21.

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his approach required adjustment.

Appendix: List of Abbreviations

CIHCAM _/_/_ Centro de Investigaciones Históricas, Colección Angel M. Mergal,

caja, cartapacio, documento

CIHCAM _/L_ Centro de Investigaciones Históricas, Colección Angel M. Mergal,

caja, libro

MD NARA, 350/_/_/_ Maryland National Archives and Records Administration, Record

Group 350, Series, Box, File

LOCPP Library of Congress Prints and Photographs

TRDLDSU Theodore Roosevelt Digital Library, Dickinson State University

CEPHC/APRM/BCS/_ Centro de Estudios Puertorriqueños, Hunter College, Archives of the

Puerto Rican Migration, Blase Camacho Souza Papers, Box 21

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