So, since January 12, 1941, persons
born inPuerto Rico are native-born
citizens, althoughpersons born in
Puerto Ricoprior to thattime, strange
as itmay seem, although beingborn in a
United Statespossession, had the
classification of a naturalized citizen.
Edward J. Shaughnessy, Deputy Commissioner,
Immigration and Naturalization Service,
Hearings for H.R. 6165 (1942)
Between 1917 and 1940, persons born in Puerto Rico could acquire a U.S. citizenship under the terms of the Jones Act and its amendments. The Jones Act of 1917 enabled Puerto Rican citizens and the inhabitants of Puerto Rico to choose between retaining their citizenship and acquiring a U.S. citizenship under the terms of Section 5, its collective naturalization provision. Because the Jones Act did not change the island’s territorial status, persons subsequently born in Puerto Rico could only acquire a derivative form of parental or jus sanguinis citizenship. Congress subsequently amended Section 5 on three occasions, namely on 1927 (§5a), 1934 (§5b), and 1938 (§5c) prior to 1940. Congress replaced the Jones Act with the Nationality Act of 1940, which became the basis for the subsequent jus soli citizenship legislation extended to Puerto Rico.
The Jones Act of 1917
The Jones Act took effect in Puerto Rico on 2 March 1917. This law amended the Foraker Act of 1900 in at least three important ways. First, it included a bill of rights for the inhabitants of Puerto Rico. Second, it changed the Executive Council created by the Foraker Act of 1900 into the Puerto Rican Senate. The Jones Act of 1917 also included a collective naturalization clause. However, the law did not contain a provision “incorporating” or changing Puerto Rico’s territorial status. Even though persons born in Puerto Rico were now able to acquire a derivative form of parental U.S. citizenship, because Congress did not change the islands’ territorial status, birth in Puerto Rico was tantamount to birth outside of the United States. Puerto Rico remained a foreign territorial possession located outside of the United States for citizenship purposes until 1940.
The Jones Act citizenship provision contained five important clauses enabling the Puerto Rican citizens permanently residing in the Puerto Rican islands to acquire a naturalized citizenship. Section 5 or the Jones Act citizenship established:
That all citizens of Porto Rico, as defined by section seven of the Act of April twelfth, nineteen hundred, "temporarily to provide revenues and a civil government for Porto Rico, and for other purposes," and all natives of' Porto Rico who were temporarily absent from that island on April eleventh, eighteen hundred and ninety-nine, and have since returned and are permanently residing in that island, and are not citizens of any foreign country, are hereby declared, and shall be deemed and held to be, citizens of the United States: Provided, That any person hereinbefore described may retain his present political status by making a declaration, under oath, of his decision to do so within six months of the taking effect of this Act before the district court in the district in which he resides… In the case of any such person who may be absent from the island during said six months the term of this proviso may be availed of by transmitting a declaration, under oath, in the form herein provided within six months of the taking effect of this Act to the executive secretary of Porto Rico: And provided further, that any person who is born in Porto Rico of an alien parent and is permanently residing in that island may, if of full age, within six months of the taking effect of this Act, or if a minor, upon reaching his majority or within one year thereafter, make a sworn declaration of allegiance to the United States before the United States District Court for Porto Rico, setting forth therein all the facts connected with his or her birth and residence in Porto Rico and accompanying proof thereof, and from and after the making of such declaration shall be considered to be a citizen of the United States (Jones Act, 39 Stat. 951, 953).
The first two clauses gave Puerto Rican citizens residing in Puerto Rico a choice to either acquire a U.S. citizenship or to retain their status quo. Puerto Rican citizens who simply did nothing were automatically naturalized. However, should any choose to retain his or her status quo, the individual was required to make an official declaration in a district court. Publicly available documents show that 288 persons chose to retain their Puerto Rican citizenship. The third clause granted Puerto Rican citizens temporarily absent from Puerto Rico, but permanently residing in the island, up to six months to make a declaration of their intention to acquire a Jones Act citizenship. Two additional clauses permitted alien residents of Puerto Rico and their children to naturalize. Alien residents were given six months and alien children were granted a 1-year period after they reached the age of majority to decide to either retain their parental citizenship or to acquire a U.S. citizenship. What is important to emphasize, however, is that Puerto Ricans residing in Puerto Rico were given a choice to reject the U.S. citizenship or retain a non-citizen national status.
Because the Jones Act did not change Puerto Rico’s territorial status, persons born in the island subsequent to the enactment of the Jones Act could only acquire a derivative or parental form of jus sanguinis (blood-right) citizenship. In other words, even though the Jones Act extended citizenship to all the residents of Puerto Rico, the citizenship provision treated the island as a territorial possession located outside of the United States. It followed that only the children of male U.S. citizens born in Puerto Rico could acquire a derivative or parental form of citizenship at birth. More importantly, the Jones Act citizenship conferred a “naturalized” citizenship status on its bearers.
A year later Congress amended the BINA of 1906 and included a provision enabling Puerto Ricans serving in the U.S. military, and absent from Puerto Rico, to acquire a U.S. citizenship via individual naturalization. The Naturalization of Resident Aliens of 1918 established that:
…any Porto Rican[sic] not a citizen of the United States, of the age of twenty-one years and upward, who has enlisted or entered or may hereafter enlist in or enter the armies of the United States, either the Regular or Volunteer Forces, or the National Army, the National Guard, or Naval Militia of any State, territory, or the District of Columbia, or the State...or within six months after an honorable discharge or separation therefrom, or while on furlough t the Army Reserve or Regular Army Reserve after Honorable service, may, on presentation of the required declaration of intention petition for naturalization without proof of the required five years residence within the United States…(NRA, 40 Stat. 542).
The 1918 law enabled Puerto Ricans serving in the U.S. military who were not residing in Puerto Rico at the enactment of the Jones Act of 1917 to treat their military service as a form of residence for naturalization purposes. Again, this law confirmed that the Jones Act of 1917 did not change Puerto Rico’s territorial status for citizenship purposes and treated Puerto Ricans as naturalized aliens.
Legal scholars generally argue that the Supreme Court’s ruling in Balzac v. People of Porto Rico (1922) is important to the story of the extension of citizenship to Puerto Rico because it affirmed the unincorporated territorial status of Puerto Rico after the Jones Act collectively naturalized the island’s inhabitants. In Balzac, the Supreme Court ruled that Jesús M. Balzac, the editor of a local newspaper could be convicted of a crime for publishing libelous articles against public officials and was not entitled to a 6th Amendment or Constitutional right to trial by jury.
Central to the Court’s reasoning were a number of arguments addressing the territorial status of Puerto Rico. One argument addressed the effect of the collective naturalization of Puerto Ricans on Puerto Rico’s territorial status. In Downes, and later in Rassmussen v. United States (1905), Justice Edward D. White argued that Congress could change Puerto Rico’s status tacitly or implicitly by naturalizing its inhabitants. Presumably, Justice White reasoned, the collective naturalization of Puerto Ricans was tantamount to welcoming them into the Anglo-American family. This legislative action could in turn be read as the implicit incorporated the islands’ inhabitants into the Anglo-American polity or political community. In Balzac, writing for the majority, Chief Justice Taft rejected this argument and established that Congress could only change Puerto Rico’s territorial status by enacting legislation that expressly incorporated the island. It followed, that Puerto Rico remained outside of the United States for domestic or constitutional purposes even though its inhabitants were now U.S. citizens.
Amending Jones Act
Congress enacted three corrective amendments to the Jones Act citizenship provision prior to 1940. These amendments sought to correct problems created by the scope of Section 5. Congress enacted Amendment Section 5(a) on 4 March 1927 establishing:
That all citizens of the United States who have resided or who shall hereafter reside in the island for one year shall be citizens of Porto Rico: Provided, That persons born in Porto Rico of alien parents, referred to in the last paragraph of section 5, who did not avail themselves of the privilege granted to them of becoming citizens of the United States, shall have a period of one year from the approval of this Act to make the declaration provided for in the aforesaid section: And provided further, That persons who elected to retain the political status of citizens of Porto Rico may within one year after the passage of this Act become citizens of the United States upon the same terms and in the same manner as is provided for the naturalization of native Porto Ricans born of foreign parents (Section 5(a), 44 Stat. 1418, 1418-1419).
Stated differently, the 1927 Amendment made it possible for two types of Puerto Rican residents to acquire a U.S. citizenship. The children of aliens residing in Puerto Rico who missed the deadlines established by the Jones Act were now granted a 1-year period to naturalize and acquire a U.S. citizenship. In addition, Section 5(a) also allowed the 288 Puerto Ricans who in 1917 chose to retain their Puerto Rican citizenship an opportunity to naturalize and acquire a U.S. citizenship.
On 27 June 1934, Congress amended the citizenship provision of the Jones Act again. Also, known as Section 5(b) the 1934 amendment established that:
All persons born in Puerto Rico on or after April 11, 1899 (whether before or after the effective date of this Act) and not citizens subjects, or nationals of any foreign power are hereby declared to be citizens of the United States: Provided, That this Act, shall not be construed as depriving any person native of Puerto Rico, of his or her American citizenship hereto or otherwise lawfully acquired by such person; or to extend such citizenship to persons who shall have renounced or lost it under the treaties and/or laws of the United States or who are now residing permanently abroad and are citizens or subjects of a foreign country: And provided further, That any woman, native of Puerto Rico and permanently residing therein, who, prior to March 2, 1917, had lost her American nationality by reason of her marriage to an alien eligible to citizenship, or by reason of the loss of the United States citizenship by her husband, may be naturalized under the provisions of section 4 of the Act of September 22, 1922, entitled 'An Act relative to the naturalization and citizenship of married women’, as amended [Section 5(b), 48 Stat. 1245].
Unlike the 1927 Amendment, which merely granted aliens and Puerto Rican citizens a 1-year period to naturalize, the 1934 Amendment began to address the substantive limitations of the scope of the Jones Act.
The 1934 Amendment contained a clause that began to change the nature of the Jones Act citizenship and a corrective clause addressing the problem of coverture. Although, according to then Resident Commissioner Santiago Iglesias Pantín, the intent of the 1934 amendment was to extend the birthright citizenship provisions of the Fourteenth Amendment as a way to secure statehood for Puerto Rico, the language of the ensuing law was limited to creating a territorial type of citizenship at birth. The first clause provided for the retroactive naturalization of Puerto Ricans born in Puerto Rico between 11 April 1899, the date of the ratification of the Treaty of Paris, and the enactment of the Section 5(b) Amendment. This clause effectively created a form of territorial citizenship at birth, limited to Puerto Ricans born in Puerto Rico. Stated differently, all Puerto Ricans born in Puerto Rico since the ratification of the Treaty of Paris were now entitled to a retroactive citizenship at birth. Again, only Puerto Ricans were able to gain U.S. citizenship at birth in Puerto Rico.
The second clause extended the Cable Act of 1922 to Puerto Rico. According to Representative John McDuffie (D-AL), the 1934 amendment enabled “a native woman of Puerto Rico who is permanently residing in Puerto Rico, and who las lost her citizenship by marriage to an alien, to be naturalized under the provisions of” Section 4 of the Cable Act [H. Rept. 73-1277 (1934)]. Again, it is important to emphasize, as Resident Commissioner Santiago Iglesias Pantín noted at the time, the law granted “Puerto Rico women equality of rights of naturalization with – continental – American-born women” (78 Cong. Rec. 10297, 10467). What is important to underscore, however, is that the 1934 amendment granted Puerto Rican-born women the ability to re-acquire a naturalized rather than a native-born citizenship status. Like both the 1927 and 1938 amendments to the Jones Act, the 1934 amendment recognized that the collective naturalization of Puerto Ricans did not change the island’s territorial status and Puerto Rico-born citizens retained a naturalized status.
On 16 May 1938, Congress amended the citizenship provision of the Jones Act a third time. Also, known as Section 5(c), the new amendment established:
That any person of good character, attached to the principles of the Constitution of the United States, and well-disposed to the good order and happiness of the United States, and born in Puerto Rico on or after April 11, 1899, who has continued to reside within the jurisdiction of the United States, whose father elected on or before April 11, 1900, to preserve his allegiance to the Crown of Spain in accordance with the provisions of the treaty of peace between the United States and Spain entered into on April 11, 1899, and who, by reason of misinformation regarding his or her own citizenship status failed within the time limits prescribed by section 5 or section 5a, hereof to exercise the privilege of establishing United States citizenship and has heretofore erroneously but in good faith exercised the rights and privileges and performed the duties of a citizen of the United States, and has not personally sworn allegiance to any foreign government or ruler upon or after attainment of majority, may make a sworn declaration of allegiance to the United States before any United States district court. Such declaration shall set forth facts concerning his or her birth in Puerto Rico, good character, attachment to the principles of the Constitution of the United States, and being wel1 disposed to the good order and happiness of the United States, residence within the jurisdiction of the United States, and misinformation regarding United States citizenship status, and shall be accompanied by proof thereof satisfactory to the court. After making such declaration and submitting such proofs, such person shall be admitted to take the oath of allegiance before the court, and thereupon shall be considered a citizen of the United States [Section 5(c), 52 Stat. 377].
Stated differently, the children of Spanish citizen born and residing in Puerto Rico since 11 April 1899, who did not take advantage of prior naturalization statutes, were now allowed to naturalize by making a simple declaration and oath of allegiance to the United States. Again, this amendment made it possible for Puerto Ricans to acquire a naturalized citizenship.
Derivative or Jus Sanguinis Citizenship
The Jones Act of 1917 did not incorporate or change Puerto Rico’s territorial status. For citizenship purposes birth in Puerto Rico following the enactment of this legislation was tantamount to birth outside of the United States. It followed that persons born in Puerto Rico after 1917 could only acquire a derivative form of parental or jus sanguinis citizenship, the same type of citizenship available to the children of citizens born outside of the United States. More importantly, persons born in Puerto Rico who acquired a U.S. citizenship under the Jones Act of 1917, or one of its subsequent amendments, acquired a naturalized citizenship or status.
The citizenship provisions of the Jones Act of 1917 were anchored on two constitutional sources. The provisions of the 1917 (Section 5), 1927 (Section 5a) and 1938 (Section 5c) were clearly anchored on the Naturalization Clause. However, according to Congress, the territorial form of citizenship at birth for Puerto Ricans under the terms of the 1934 (Section 5b) was anchored on the Territories Clause. In 1940, Congress replaced the Jones Act citizenship with legislation that began to treat Puerto Rico as a part of the United States for the sole purpose of conferring birthright or jus soli citizenship.
Cited and Suggested Resources:
78 Cong. Rec. 1127 (Jan. 26, 1934)
78 Cong. Rec. 10297 (June 4, 1934)
Balzac v. People of Porto Rico, 258 U.S. 298 (1922).
Cable Act of 1922, Pub. L. No. 67-346, 42 Stat. 1021 (1922).
Rassmussen v. United States, 197 U.S. 516 (1905).
United States Congress. House of Representatives. Preserving the Nationality of a Person Born In Puerto Rico who Resides for Five Years in a Foreign State: Hearing on H.R. 6165 Before the House Subcomm. on Immigration and Naturalization, 77th Cong. 4-5 (June 17, 1942) (statement of Edward J. Shaughnessy, Deputy Commissioner, Immigration and Naturalization Service).
Álvarez González, José Julián. DERECHO CONSTITUCIONAL DE PUERTO RICO Y RELACIONES CONSTITUCIONALES CON LOS ESTADOS UNIDOS, CASOS Y MATERIALES. BOGOTÁ: EDITORIAL TEMIS, S.A., 2009.
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_____. “Comments on the Jones Act and the Grant of U.S. Citizenship to Puerto Ricans,” CENTRO: Journal of Puerto Rican 39(1) (Spring 2013): 316-327.
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Venator-Santiago, Charles R. “Marriage and the Expatriation of Puerto Rican Women: A Note on the Extension of the Cable Act of 1922 to Puerto Rico,” Latino(a) Research Review 8(1-2) (2012): 231-246.
_____. “Extending Citizenship to Puerto Rico, The Three Traditions of Inclusive Exclusion,” CENTRO: Journal of Puerto Rican Studies 25(1) (2013): 50-75.