Puerto Rico and our history of racist territorial labels

In the Northern Pacific Ocean, nestled between Hawaii and American Samoa, lies a tiny island with a big legacy. Palmyra Atoll is the United States’ last remaining incorporated territory.

If you’ve never heard of Palmyra Atoll, you’re in good company. That’s because the 4.6 square-mile stretch of salt flats and coral reefs is a judicial oddity from a bygone era. More than 100 years ago, the U.S. Supreme Court decided that incorporated territories enjoy the full protection of the Constitution and have a clear path to statehood — but unincorporated territories do not.

This means Palmyra Atoll — an uninhabited island, except for a few marine biologists — has more legal rights than Puerto Rico, an unincorporated territory and home to 3.2 million American citizens, including many veterans. Puerto Ricans have served in the Armed Forces since World War I and many have fought and died defending the nation.

In the wake of the killing of George Floyd, as Americans grapple with how to address lingering issues of systemic racism, outdated and racist U.S. territorial laws and policies have not been part of this discussion.

Puerto Rico lacks political power to change the framework of its territorial relation with the U.S. Its residents do not vote for the president nor do they elect members of the Senate or the House. Puerto Rico does send one non-voting delegate to Congress.

In the corridors of American power, Puerto Rico depends on the kindness of strangers.

Yet Puerto Ricans living in the U.S. have the potential to gain political power through the voting process. This is especially true in Florida, a swing state with 29 electoral votes, and home to the largest concentration of Puerto Ricans outside the island — more than 1.1 million people, who as American citizens can vote in national elections when they migrate to the states.

The number of island-born Puerto Ricans eligible to vote in Florida has increased 30% since 2016, according to the Pew Center. These voters were largely absent in the 2018 mid-term elections. A lack of understanding of U.S. elections is one explanation for the low turnout — all voting in Puerto Rico occurs once every four years.

The big question is whether Florida’s Puerto Rican voters will show up at the polls in November.

First, some territorial history.

At the turn of the 20th Century, as the U.S. was building an empire, it was also trying to figure out what to do with its new offshore colonies, including Puerto Rico, that were acquired in the 1898 Spanish-American War. Between 1901 and 1922, the U.S. Supreme Court issued a series of decisions known as the Insular

Cases that were meant to answer the question: “Does the Constitution follow the flag?”

These rulings basically determined that unincorporated territories “belongs to, but are not part of ” the U.S. The legal doctrine was similar to “separate but equal,” as the first Insular Cases were decided by the same justices who had ruled in Plessy v. Ferguson. This 1896 ruling upheld the constitutionality of racial segregation laws, which deprived African Americans of their civil rights for decades to come.

In the Insular Cases, the Court determined that unincorporated overseas territories — with the exception of Alaska and Hawaii — were not fully covered by the Constitution and were not meant to become states. The language expressed at the time would not be tolerated today. The justices deemed the residents of the new overseas territories, which included the Philippines and Cuba, as members of “uncivilized races” who did not hold the nation’s Anglo Saxon values of governance.

Plessy was overturned in the 1954 landmark Brown v. Board of Education ruling, which ended segregation in schools. But the Insular Cases remain in effect to this day. This legal doctrine keeps the residents of Puerto Rico — and other unincorporated territories such as the U.S. Virgin Islands and Guam — perpetual second-class citizens.

In Puerto Rico’s case, lack of voting representation in Congress — the body that holds power over every facet of Puerto Rican society — affects everything from economic development to tax credits to equal treatment under Medicaid and other federal laws and regulations. Statehood would cut through this Gordian Knot, giving Puerto Rico the same rights and responsibilities as the other 50 states.

The issues of Puerto Rico’s political status are complex, and Puerto Ricans are divided over the best way to decolonize their homeland. Yet a recent survey by the political group Equis Labs shows that 57% of Puerto Ricans residing in Florida favor statehood for the island.

Puerto Rico’s status is an issue that can motivate Puerto Ricans to vote. It’s clear that Hispanic groups in Florida need to step up efforts to turn out this vote.

It likely will take a few more election cycles for Florida’s fastest growing Hispanic group to develop political strength and possibly start to influence U.S. policy toward Puerto Rico, as Cuban Americans have done regarding Cuba.

Until Puerto Ricans in the U.S. exert greater political power, the anachronistic Insular Cases will remain part of American jurisprudence and the faraway and uninhabited island of Palmyra Atoll will continue to have more legal rights and constitutional powers than Puerto Rico.