Puerto Rican Citizenship
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 to or providing for the collective naturalization of the inhabitants of the annexed territories. The Treaty of Paris of 1898 (TOP) and the ensuing Foraker Act of 1900 invented a new type of subjectivity described as a non-citizen nationality 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 Puerto Rican citizenship was first introduced in Article Nine of the peace Treaty of Paris. The first clause of Article Nine 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 (TOP, 30 Stat. 1754, 1759).
Whereas prior 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 creation 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 either retain their allegiance to Spain or acquire the local or Puerto Rican nationality.
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 in order as a precondition for undergoing the naturalization process. Puerto Rican nationals were thus 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.
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 Department of War 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 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.
Puerto Rican Citizenship
The Foraker Act of 1900 not only replaced the military dictatorship with a civilian government, but also institutionalized Article Nine of the Treaty of Paris.
At least five bills containing citizenship provisions for Puerto Rico were debated during the 56th Congress in the process of reaching an agreement on the final version of the Foraker Act. The initial bills, S. 2016 and S. 2264, introduced by Senator Joseph B. Foraker (R-OH) provided for the collective naturalization of Puerto Ricans. In addition, Representative Robert L. Henry (D-TX) introduced H.R. 7020, which provided for the extension of the Citizenship Clause of the Fourteenth Amendment to Puerto Rico. However, as the debates in Congress progressed a majority of lawmakers rejected the idea of granting U.S. citizenship to Puerto Ricans. The last two bills debated in Congress, H.R. 8245 (as well as its Amendments) and H.R. 8878, called for the invention of a Puerto Rican citizenship for the island.
The final version of the Foraker Act citizenship provision invented a Puerto Rican citizenship to govern the island-born inhabitants of Puerto Rico. Section Seven 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 (Foraker Act, 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.
Legal scholars generally argue that the academic debates of the late 1890s over the status of Puerto Rico and the other annexed Spanish ultramarine territories shaped different dimensions of the ensuing doctrine of territorial incorporation. To be sure, anti-imperialists/colonialists generally agreed that Puerto Rico’s annexation brought the island within the sovereign limits of the United States for the purposes of the Citizenship Clause of the Fourteenth Amendment. Drawing on past colonialist territorial law and policy, anti-imperialists argued that the Constitution followed the flag, or upon annexation, Puerto Rico became a part of the United States for constitutional purposes. For anti-imperialist/colonialists, birth in Puerto Rico was tantamount to birth in the United States.
Alternatively, imperialists generally agreed that territories were not a part of the United States for constitutional purposes. It followed that the Citizenship Clause did not extend to Puerto Rico and the newly annexed territories. For imperialists, birth in Puerto Rico was tantamount to birth outside of the United States, at least for citizenship and constitutional purposes more generally.
The Third View interpretation rejected the anti-imperialist/colonialist and imperialist interpretations and in part made the Puerto Rico’s territorial status contingent on the citizenship status of the newly annexed territories’ inhabitants. Because the Treaty of Paris did not provide for the collective naturalization of Puerto Rico’s inhabitants, advocates of the Third View argued, the federal government was not bound to treat the island as a territorial part of the United States. However, this did not mean that the federal government possessed a plenary or absolute power to rule the inhabitants of an annexed territory without any legal restrictions. The inhabitants of Puerto Rico were entitled to fundamental rights. Congress could enact legislation selectively extending or withholding constitutional rights to Puerto Rico. To this extent, the Federal government could govern the new territorial possession as an anomalous territory that belonged to but was not a part of the United States.
Again, the Court’s opinion in Downes echoed the three prevailing academic interpretations. Justice Brown essentially argued that territories were not a part of the United States for constitutional purposes and therefore the Citizenship Clause of the Fourteenth Amendment did not extend to Puerto Rico. Alternatively, Chief Justice Fuller argued that annexed territories became a part of the United States and the Constitution extended on its own force to Puerto Rico. In contrast, Justice White argued that Congress wielded the power to selectively govern Puerto Rico as a foreign territory suggesting that birth on the island could be tantamount to birth outside of the United States for domestic or constitutional purposes. However, Justice White also argued that Congress held a power to enact legislation that either expressly or implicitly made (incorporated) Puerto Rico a part of the United States. As Professor Efrén Rivera Ramos has noted, Justice White suggested that Congress’ enactment of collective naturalization legislation for an unincorporated territory was tantamount to Congress implicitly incorporating a territory. Stated differently, by enacting citizenship legislation for Puerto Rico, Justice White’s interpretation suggested, Congress was incorporating or making Puerto Rico a part of the United States for constitutional purposes.
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. In Gonzalez, the Court ruled on whether Isabel Gonzalez, a Puerto Rican citizen, could be barred from entry into the United States because immigration officials feared that she would become a public charge under the terms of prevailing immigration laws. The Court, however, never ruled on the constitutionality of the Puerto Rican citizenship or on the naturalization of Puerto Ricans. 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. It is true that at least one federal judge subsequently argued that the Gonzalez ruling established that Puerto Ricans were “white” for naturalization purposes, but this was a subsequent interpretation of the implications of the Court’s affirmation of Gonzalez’ ability to migrate or travel from Puerto Rico to the mainland.
Between 1901 and 1904, or during the 57th and 58th Congresses, federal lawmakers debated four additional bills containing citizenship provisions for Puerto Rico. Two bills, H.R. 15340 and H.R. 11592 provided for the collective naturalization of Puerto Ricans. In contrast, two additional bills, namely H.R. 17546 and S. 2345 sought to enable Puerto Ricans to naturalize and acquire a U.S. citizenship via a process of individual naturalization. This debate would not be resolved until 1906, when Congress began enact legislation permitting Puerto Ricans to undergo an individual process of naturalization.
In sum, between 1898 and 1900, the United States invented a separate and unequal Puerto Rican citizenship consistent with the new unincorporated territorial status adopted to govern the island. Again, the new non-citizen nationality or Puerto Rican citizenship made it possible to legitimate the inclusion of Puerto Ricans within the nascent U.S. global empire while simultaneously excluding island or insular-born inhabitants from U.S. citizenship or membership in the Anglo-American polity. Congress, as I explain elsewhere, began to abolish the Puerto Rican citizenship in 1934.