Unincorporated territory is a legal term of art in United States law denoting an area controlled by the government of the United States, but which is not a part of the United States proper (see also possession).
An incorporated territory of the United States is a specific area under the jurisdiction of the United States, over which the United States Congress has determined that the United States Constitution is to be applied to the territory's local government and inhabitants in its entirety (e.g., citizenship, trial by jury), in the same manner as it applies to the local governments and residents of the U.S. states. Incorporated territories are considered an integral part of the United States, as opposed to being merely possessions.[1]
All territory under the control of the federal government is considered part of the "United States" for purposes of law.[2] From 1901 to 1905, the U.S. Supreme Court in a series of opinions known as the Insular Cases held that the Constitution extended ex proprio vigore to the territories. However, the Court in these cases also established the doctrine of territorial incorporation, under which the Constitution applies fully only in incorporated territories such as Alaska and Hawaii, and applies only partially in the new unincorporated territories of Puerto Rico, Guam and the Philippines.[3][4]
To define what is an unincorporated territory in Balzac v. People of Porto Rico, 258 U.S. 298, 312 (1922), the Court used, as an argument of non-incorporated territory, the following statements regarding the court in Puerto Rico:
The United States District Court is not a true United States court established under article 3 of the Constitution to administer the judicial power of the United States therein conveyed. It is created by virtue of the sovereign congressional faculty, granted under article 4, 3, of that instrument, of making all needful rules and regulations respecting the territory belonging to the United States. The resemblance of its jurisdiction to that of true United States courts, in offering an opportunity to nonresidents of resorting to a tribunal not subject to local influence, does not change its character as a mere territorial court.[5]
In Glidden Co. v. Zdanok, 370 U.S. 530 (1962) the court cited Balzac and made the following statement regarding courts in unincorporated territories:
Upon like considerations, Article III has been viewed as inapplicable to courts created in unincorporated territories outside the mainland, Downes v. Bidwell, 182 U.S. 244, 266 -267; Balzac v. Porto Rico, 258 U.S. 298, 312 -313; cf. Dorr v. United States, 195 U.S. 138, 145 , 149, and to the consular courts established by concessions from foreign countries, In re Ross, 140 U.S. 453, 464 -465, 480. 18
"The inhabitants of the ceded territory . . . shall be admitted to the enjoyment of all the rights, advantages, and immunities of citizens of the United States;" This declaration, although somewhat changed in phraseology, is the equivalent, as pointed out in Downes v. Bidwell, of the formula, employed from the beginning to express the purpose to incorporate acquired territory into the United States, especially in the absence of other provisions showing an intention to the contrary.".[6] Here we see that the act of incorporation is on the people of the territory, not on the territory per se, by extending the privileges and immunities clause of the Constitution to them.
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Captain William Reynolds of the USS Lackawanna formally took possession of the Midway Atoll for the United States.[7]
The 1898 Treaty of Paris came in to effect, transferring Guam, the Philippines, and Puerto Rico from Spain to the United States, all three becoming unorganized, unincorporated territories. Puerto Rico's official name was changed to Porto Rico, a phonetic reinterpretation of the Spanish name for the territory.
The Foraker Act organized Porto Rico.[8]
The United States took control of the portion of the Samoan Islands given to it by the Treaty of Berlin of 1899, creating the unorganized, unincorporated territory of American Samoa.
Emilio Aguinaldo, the Filipino leader in the Philippine-American War, surrendered, allowing the United States to form a civilian government.
Under the terms of a 1903 lease agreement, the United States came to exercise complete control over Guantanamo Bay in Cuba, while Cuba retained ultimate sovereignty over the territory.
The Philippine Autonomy Act or Jones Law was signed, promising the Philippines independence.
Jones-Shafroth Act reorganized Porto Rico. This act conferred United States citizenship on all citizens of Puerto Rico.
The United States purchased the U.S. Virgin Islands under the terms of a treaty with Denmark.[9]
The name of Porto Rico was changed to Puerto Rico.[10]
The Tydings-McDuffie Act was signed allowing the creation of the Commonwealth of the Philippines.
The United States recognized Philippine independence.
The United Nations granted the Trust Territory of the Pacific Islands to the United States, consisting primarily of many islands fought over during World War II, and including what is now the Marshall Islands, Federated States of Micronesia, Northern Mariana Islands, and Palau. It was a trusteeship, and not a territory of the United States.
The Privileges and Immunities Clause regarding the rights, privileges, and immunities of citizens of the United States was expressly extended to Puerto Rico by the U.S. Congress through the federal law codified on the Title 48 of the United States Code as 48 U.S.C. § 737 and signed by President Truman. This law indicates that the rights, privileges, and immunities of citizens of the United States shall be respected in Puerto Rico to the same extent as though Puerto Rico were a State of the Union and subject to the provisions of paragraph 1 of section 2 of article IV of the Constitution of the United States.
The Guam Organic Act came into effect, organizing Guam as an unincorporated territory.[11]
Puerto Rico became a Commonwealth of the United States, an unincorporated organized territory, with the ratification of its constitution.[10]
The Organic Act for the United States Virgin Islands went into effect, making them an unincorporated, organized territory.[11]
American Samoa's constitution became effective. Even though no Organic Act was passed, this move to self-government made American Samoa similar to an organized territory.[11]
Article Three of the United States Constitution, was expressly extended to the United States District Court for the District of Puerto Rico by the U.S. Congress through the federal law 89-571, 80 Stat. 764, this law was signed by President Lyndon B. Johnson.
The Northern Mariana Islands left the Trust Territory of the Pacific Islands to become a commonwealth of the United States, making it unincorporated and organized.[11][12]
The Marshall Islands attained independence from the Trust Territory of the Pacific Islands, though the trusteeship granted by the United Nations technically did not end until December 22, 1990. The Marshall Islands remained in free association with the United States.
The Federated States of Micronesia attained independence from the Trust Territory of the Pacific Islands, and remained in free association with the United States.
The United Nations terminated the Trust Territory of the Pacific Islands for all but the Palau district.
The United Nations terminated the Trust Territory of the Pacific Islands for the Palau district, ending the territory, making Palau de facto independent, as it was not a territory of the United States.
Palau attained de jure independence, but remained in free association with the United States.[13]