Puerto Rican Citizenship
There is no way in which they can
become citizens of the United States.
Not being aliens and having no foreign
sovereignty to renounce they cannot become
naturalized, and they are consequently
in a far worse position that
the citizens of any other country.
Senator Foraker’s (R-OH)
Senate Report No. 2746 accompanying S. 2620 (1906)
The United States both departed from prior precedents and invented a new territorial subjectivity to govern Puerto Rico and the other territories annexed in the aftermath of the Spanish-American War of 1898. Prior to 1898, treaties of territorial annexation and/or the ensuing organic or territorial legislation adopted to govern acquired territories contained provisions promising or providing for the collective naturalization of the inhabitants of annexed territories. The Treaty of Paris of 1898 and the ensuing Foraker Act of 1900 invented a new type of subjectivity described as a non-citizen national or Puerto Rican citizenship to govern the primarily non-Anglo-Saxon inhabitants of Puerto Rico. This “nationality” or Puerto Rican citizenship in turn barred island or insular-born Puerto Ricans from either retaining their Spanish citizenship or acquiring a U.S. citizenship. The new Puerto Rican citizenship affirmed the inclusion of Puerto Rico within the U.S. global empire while simultaneously excluding Puerto Ricans from equal membership within the Anglo-American polity.
The notion of a non-citizen nationality was first introduced in Article IX of the peace Treaty of Paris of 1898. The first clause of Article IX established that:
Spanish subjects, natives of the Peninsula, residing in the territory over which Spain by the present treaty relinquishes or cedes her sovereignty, may remain in such territory or may remove therefrom, retaining in either event all their rights of property, including the right to sell or dispose of such property or of its proceeds; and they shall also have the right to carry on, their industry, commerce and professions, being subject in respect thereof to such laws as are applicable to other foreigners. In case they remain in the territory they may preserve their allegiance to the Crown of Spain by making, before a court of record, within a year from the date of the exchange of ratifications of this treaty, a declaration of their decision to preserve such allegiance; in default of which declaration they shall be held to have renounced it and to have adopted the nationality of the territory in which they may reside (30 Stat. 1754, 1759).
Previous U.S. treaties of territorial annexation, including other treaties with Spain and Mexico, either provided for the collective naturalization of the inhabitants of the annexed territory or promised to do so at some later time. The Treaty of Paris, however, invented a local nationality based on the invention of a difference between insular or island-born (Puerto Rico) and peninsular-born (Spain) Spanish citizens inhabiting Puerto Rico. Island-born Spanish citizens were barred from retaining their Spanish citizenship and were ascribed or imposed a local Puerto Rican nationality. Alternatively, peninsular-born Spanish citizens were allowed to retain their allegiance to Spain, acquire the local or Puerto Rican nationality or undergo a naturalization process in order to acquire a U.S. citizenship.
Not only were island-born Spaniards denaturalized and barred from retaining their Spanish citizenship, but they were also barred from acquiring a U.S. citizenship. To be sure, under prevailing immigration and naturalization laws aliens seeking to acquire a U.S. citizenship were required to renounce their allegiance to a sovereign as a precondition for undergoing the naturalization process. In order to comply with prevailing naturalization laws, Puerto Rican nationals were required to renounce their allegiance to the United States in order to acquire a naturalized U.S. citizenship! In contrast, peninsular-born inhabitants of Puerto Rico could simply renounce their allegiance to Spain and undergo a local naturalization process. The Treaty of Paris imposed a membership status on Puerto Ricans that was inferior to that of an alien.
During the negotiations of the treaty, the McKinley administration decided to differ the question of extension of U.S. citizenship to insular-born Spanish/Puerto Ricans to Congress. The language of the second clause of Article IX stated:
The civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by the Congress (30 Stat. 1754, 1759).
The record of the proceedings suggests that President McKinley did not want to create a precedent that could be used or invoked to grant citizenship to Filipinos. The Treaty of Paris affirmed Congress’ power to extend via legislation or statute one of the two citizenship clauses in the U.S. Constitution to the Puerto Rican islands.
As I noted previously, soon after the U.S. occupation, the military was tasked with governing the island and crafting local government institutions to both administer Puerto Rico and prepare it for a new relationship with the United States. Available government reports and publications from the War Department suggest that the military held two views on the citizenship status of Puerto Ricans. The dominant or prevailing view argued that Puerto Ricans were racially inferior, un-civilized, and essentially incapable of assuming the rights and responsibilities of a U.S. citizen. Alternatively, a small but important group of members of the military, including Brigadier General George V. Davis, argued that Puerto Rico was primarily inhabited by White aliens or inferior aliens of the “Spanish” race. General Davis and others believed that individual Puerto Rican elites should be allowed to naturalize and acquire a U.S. citizenship. Notwithstanding, both camps within the military opposed the collective naturalization of Puerto Ricans.
The Foraker Act of 1900 not only replaced the military dictatorship with a civilian government, but also normalized Article IX of the Treaty of Paris. The final version of the Foraker Act citizenship provision invented a Puerto Rican citizenship to govern the island-born inhabitants of Puerto Rico. The Puerto Rican citizenship was tantamount to the non-citizen nationality. Section 7 of the Foraker Act established:
That all inhabitants continuing to reside therein who were Spanish subjects on the eleventh day of April, eighteen hundred and ninety-nine, and then resided in Porto Rico, and their children born subsequent thereto, shall be deemed and held to be citizens of Porto Rico, and as such entitled to the protection of the United States, except such as shall have elected to preserve their allegiance to the Crown of Spain on or before the eleventh day of April, nineteen hundred, in accordance with the provisions of the treaty of peace between the United States and Spain entered into on the eleventh day of April, eighteen hundred and ninety-nine; and they, together with such citizens of the United States as may reside in Porto Rico, shall constitute a body politic under the name of The People of Porto Rico, with governmental powers as hereinafter conferred, and with power to sue and be sued as such (31 Stat. 77, 79).
Like the Treaty of Paris’ local nationality, the Foraker Act citizenship placed its bearers in an anomalous situation where they were legally barred from naturalizing and acquiring a U.S. citizenship. In contrast, peninsular-born Spanish inhabitants were allowed to naturalize (and acquire a U.S. citizenship) in the territorial district court for Puerto Rico created by the Foraker Act.
In some ways, the invention of the so-called doctrine of territorial incorporation, also known as the doctrine of separate and unequal, in Downes was consistent with the notion of the non-citizen nationality or Puerto Rican citizenship. If the Court affirmed the colonialist interpretation embraced by the dissenting judges, then Puerto Rico would have become a part of the United States upon annexation and the Citizenship Clause of the Fourteenth Amendment would have applied on its own force or ex propio vigore. In contrast, Justice Brown embraced the notion that Puerto Ricans should be barred from receiving U.S. citizenship. Justice Brown’s argument suggested that Puerto Ricans should be ruled as aliens. Justice White’s interpretation granted Congress a flexibility to invent an anomalous citizenship status or subsequently decide to enable Puerto Ricans to naturalize (preferably limited to local elites). Justice White’s interpretation of the unincorporated territorial status affirmed the idea that the inhabitants of the newly acquired insular territory could be ruled as non-citizens owing allegiance to the nation.
It is also important to understand how race informed these debates. The historical record is clear that there was an almost universal consensus that U.S. law and policymakers across political ideologies embraced racist representations of Puerto Ricans and objected to their inclusion in the Anglo-American polity. The question is what was the representation of the Puerto Rican race? If we contextualize the racist descriptions of the inhabitants of Puerto Rico in the relevant legal documents within the broader progressive legal ideology informing debates during this period then the answer is that the U.S. empire conceptualized Puerto Ricans as an inferior, alien, Spanish, white race. Treating Puerto Ricans as inferior, white aliens gave the federal government flexibility to selectively naturalize (individually or collectively) Puerto Ricans in the future. It is important to recognize that until 1952, “whiteness” was a precondition for naturalization. The subsequent legal histories of the citizenship legislation debated and enacted for Puerto Rico confirm this interpretation.
The invention of a Puerto Rican citizenship created a number of administrative problems for the U.S. government. One of these problems, a problem that would endure until 1940, was linked to the birth of a person in an unincorporated territory that was foreign in a domestic sense. Where Puerto Rican citizens born outside of the United States aliens for citizenship and naturalization purposes? After all, the text of the U.S. Constitution only recognized citizens and aliens. A second problem was linked to the citizenship requirements of various laws, including the prevailing passport law. To be sure, only U.S. citizens could acquire a U.S. passport. At the time, Puerto Rican-born merchants found themselves unable to use their Spanish citizenship documents and unable to acquire a U.S. passport. On 14 June 1902, Congress, at the behest of the State Department, enacted the Insular Passport Amendment of 1902 creating a special exemption for the residents of the insular territories enabling Puerto Rican citizens to acquire a U.S. passport. The ability to acquire a U.S. passport should have helped clarify the status of Puerto Rican citizens within the U.S. empire.
Some scholars argue that the Supreme Court’s subsequent ruling on Gonzalez v. Williams (1904) shaped the debates over the citizenship status of Puerto Ricans. Isabella Gonzalez arrived in the Port of New York on 24 August 1902, several months after Congress affirmed the ability of Puerto Ricans to acquire a U.S. passport and was detained by an immigration official. In Gonzalez, the Court ruled on whether Gonzalez, a Puerto Rican citizen, could be barred from entry into the United States. Immigration officials at Ellis Island believed that the non-citizen nationality was tantamount to an “alien” status and feared that she would become a public charge under the terms of the prevailing immigration laws. This case addressed the ability of Puerto Rican citizens to migrate or move between the island and the mainland and throughout the United States more generally. The Court, however, did not discuss the impact that the Insular Passport Amendment had on Gonzalez’ ability to travel, rule on the constitutionality of the Puerto Rican citizenship, nor offered any comments on the naturalization of Puerto Ricans. Nonetheless, subsequent lower federal courts and Congress read the Gonzalez ruling as an affirmation that Puerto Ricans were white and thus able to subsequently naturalize under prevailing immigration and naturalization laws.
Territorial Citizenship
The non-citizen nationality and/or Puerto Rican citizenship is an example of a non-constitutional statutory form of citizenship. The United States Constitution contains two sources of citizenship that confer two different types of citizenship, namely the Naturalization Clause (Art. 1, cl. 8, §4) and the Citizenship Clause of the 14th Amendment. The Naturalization Clause enables Congress to enact naturalization statutes enabling persons born and/or naturalized outside of the United States to acquire a citizenship. The Citizenship Clause contains a provision enabling most persons born in the United States to acquire a birthright or jus soli citizenship at birth. It also contains a naturalization provision enabling aliens to naturalize in the United States. The non-citizen nationality and/or Puerto Rican citizenship was not anchored on any of these clauses.
The non-citizen nationality and Puerto Rican citizenship were anchored on two different constitutional clauses. The Treaty of Paris’ non-citizen nationality emanated from the Treaty Clause (Art. 2, cl. 2) or from the power to ratify treaties. In contrast, the Foraker Act’s Puerto Rican citizenship was anchored in the Territories Clause (Art. 4, cl. 3, §2), which granted Congress a power to enact needful rules and regulations through organic acts to rule a territory. Both clauses enable Congress to enact citizenship statutes without much, if any constitutional weight. The Puerto Rican citizenship remained in force until 1934, when Congress began to introduce a territorial form of citizenship at birth.
Cited and Suggested Sources:
Primary Sources
Downes v. Bidwell, 182 U.S. 244 (1901).
Foraker Act of 1900, ch. 191, 31 Stat. 77 (1900).
Gonzalez v. Williams, 192 U.S. 1 (1904).
Re Bonnet y Jaspard, 2 P.R. Fed. Rep. 70 (1906).
Miguel Roses Artau and Elias A. Wolff, 29 Op. Att’y Gen. 521 (1913).
To Provide That all Inhabitants of Porto Rico Shall Be Citizens of the United States, S. 2620, 59th Cong. (1906).
Treaty of Paris of 1898. 30 Stat. 1754 (1899).
United States Congress. House of Representatives. Annual Reports of the War Department for the Fiscal Year Ended June 30, 1900, Part 13: Report of the Military Governor of Porto Rico on Civil Affairs, 56th Cong., 2d sess., 1902, H. Doc. 2, Part 13.
United States Congress. Senate. Inhabitants of Porto Rico to be Citizens of the United States, 59th Cong., 1st Sess., 1906, S. Rept. 2746.
Secondary Sources
Duffy Burnett, Christina. “‘They say I am not American…’: The Noncitizen National and the Law of American Empire,” 29 Immigr. & Nat’lity L. Rev. 511 (2008).
Erman, Sam. “Meanings of Citizenship in the U.S. Empire: Puerto Rico, Isabel Gonzalez, and the Supreme Court, 1898-1905,” Journal of American Ethnic History 27(4) (2008), 5-33.
_____. Almost Citizens: Puerto Rico, the U.S. Constitution, and Empire. New York: Cambridge University Press, 2019.
García Martínez, Alfonso L. “La ciudadanía puertorriqueña, concepto del habitante natural,” 39 Rev. Jur. C. Abog. 241 (1978).
Gould, Lyman J. La ley Foraker, raíces de las política colonial de los Estados Unidos. Río Piedras: Editorial U.P.R., 1969.
Huot Calderón, Eugenio J. “The Concept of Puerto Rican Citizenship,” 35 Rev. Der. P.R. 321 (1996).
López Baralt, José. “Is the Paris Treaty “Null Ab Initio” as to the Cession of Puerto Rico?” 7 Rev. Jur. U.P.R. 75 (1938).
_____. The Policy of the United States Towards its Territories with Special Reference to Puerto Rico. Río Piedras: Editorial de la Universidad de Puerto Rico, 1999.
Luque de Sánchez, María Dolores. La ocupación norteamericana y la ley Foraker, la opinión pública puertorriqueña. Río Piedras: Editorial Universitaria, 1986.
Mattei Filardi, Luis. La sombra del imperio: Los inicios del Consejo Ejecutivo en Puerto Rico. San Juan: Isla Negra Editores, 2012.
McGovney, Dudley O. “Our Non-Citizen Nationals, Who are They,” 22 Cal. L. Rev. 593 (1934).
Raffucci de Garcia, Carmen I. El gobierno civil y la ley Foraker. Río Piedras: Editorial Universitaria, 1981.
Rivera Ramos, Efrén. American Colonialism in Puerto Rico: The Judicial and Social Legacy. Princeton: Markus Wiener Publishers, 2007.
Root, Elihu. The Military and Colonial Policy of the United States, Addresses and Reports, 2nd ed., Edited by Robert Bacon and James Brown Scott. Cambridge, 1916; New York: AMS Press, 1970.
Whitney, Edward B. “The Porto Rico Tariffs of 1899 and 1900,” 9 Yale L. J. 297 (1900).