What is the legal status of people from United States overseas territories?

Question

I am reading the wikipedia page about Puerto Rico's political status, and the section about citizenship paints a pretty crazy picture. In a nutshell, a person born in Puerto Rico is a US citizen, but since someone living in Puerto Rico is not living in a state, they cannot vote in federal elections. This implies that a Puerto Rican could move to The States, no immigration process, and vote in federal elections, with no change in legal status, even though they couldn't before. Is that really how it works?

Being born in a US territory, they are not barred from holding the office of the presidency, but since residing in Puerto Rico does not count as residing in The States, a hypothetical Puerto Rican presidential candidate would've had to have lived in The States for fourteen years.

This seems like a weird patchwork legal status kludged together from some rights being won and other rights not being won.

Puerto Rico is an overseas unincorporated territory. There are four other US overseas territories, American Samoa, Guam, Northern Mariana Islands, and the US Virgin Islands. Do residents of those four other territories have those same rights as people from Puerto Rico? Are those rights standardised across all of those territories, or are the US Citizenship rights across the territories a kludged together patchwork?

And what about Hawaii? Before Hawaii was a state, it was an overseas territory. I remember (or perhaps imagined) a strain of the Obama birther conspiracy theory that maintained that Obama was born in Hawaii, but lied about his age, and was born before Hawaii was a state, and was ineligible for the presidency for that reason. But if Hawaii had the same rules as Puerto Rico, then Obama would've still been eligible for the presidency, even if he was born before Hawaii was a state.

So, which is it? There are plenty of people still alive who were born in Hawaii before it was a state, such as Bette Midler. So did The Divine Miss M have to apply for citizenship, was she born a US citizen, or was citizenship for people born in Hawaii retroactive? And could she be president?

Answer 1

I'll answer some of the questions.

8 USC 1405: Persons born in Hawaii provides that anyone born on or after April 30, 1900, is a citizen of the United States at birth.

Eligibility for the vice-presidency and presidency is essentially the same; Charles Curtis was the 31st vice president and was born in the Kansas Territory.

The reason citizens living in territories can't vote for president and vice president is that, despite the appearance of the ballots, they don't actually vote for president, they vote for electors of the Electoral College. Only states and the District of Columbia have electors. Since territories other than DC don't have electors, the citizens there can't vote for electors. Puerto Ricans can vote for a resident commissioner, who participates in the US House of Representatives but does not vote there.

Answer 2

It is a patchwork.

The original determination was that people born in some territories are not entitled to citizenship under the 14th Amendment. This was determined by a series of cases in the early 20th century called the Insular Cases (meaning "pertaining to islands"). There was a distinction drawn between "incorporated" and "unincorporated" territories. Alaska and Hawaii were "incorporated" and, while they yet had no privileges of states such as representation in Congress, their residents were considered full citizens of the US. When they were admitted as states, their citizens already had full citizenship. "Unincorporated" territories have fewer rights, generally only those granted by Congress. As a result of this, while people born in Guam and Puerto Rico, for example, are citizens according to statute, not all other unincorporated territories grant birthright citizenship (at least not by virtue of the geography - they might still be US citizens by birth if their parents were American).

The only remaining "incorporated" territory is the territory of Palmyra Island, which is uninhabited. All others are "unincorporated."

The most recent precedent covering this situation is Tuaua vs. United States, which held that American Samoans are not entitled to citizenship, but only the status of "American national." This happened in 2015, so it's probably not going to be overturned any time soon.

Answer 3

Regarding elections: Citizens in the territories have the ability to vote in the elections in that territory, just like citizens in the states have the ability to vote in the elections in that state. Territories do not hold elections for US senators, because territories do not have US senators. Each territory does have one non-voting member in the US House of Representatives, so people in the territory can vote in the election for that position. (This is similar to the situation for the District of Columbia, which also has no US Senators and has one non-voting member in the US House.)

Territories don't hold presidential elections (or technically, elections for presidential electors) simply because territories don't have any electors in the Electoral College. (Only the states and DC do.) I mean, in theory, a territory could hold a "presidential election" if it wanted, but it would be a waste of money, as it would not have any effect on the choice of electors, since the territory has no electors.

Regarding citizenship: It's a patchwork. Unincorporated territories do not automatically get birthright citizenship. Congress has to pass a law to grant citizenship to people of unincorporated territories, and in many cases, a territory did not get citizenship at the same time it became a territory:

• Puerto Rico became a US territory in 1899, but US citizenship was not generally extended to it until the Jones-Shafroth Act of 1917.
• The US Virgin Islands became a US territory in 1917, but US citizenship was not generally extended to it until 1927.
• Guam became a US territory in 1899, but US citizenship was not generally extended to it until the Guam Organic Act of 1950.
• The Northern Mariana Islands became a US territory in 1986 after a transition period starting in 1978. US citizenship was extended to it immediately when it became a US territory in 1986 by the CNMI Covenant (and in the current interpretation, even starting in 1978, although there are disputes about that).
• The Philippines became a US territory in 1899, but US citizenship was never generally extended to it before it became independent in 1946.
• American Samoa became a US territory in 1900, and is still a US territory today, but US citizenship was never generally extended to it, and people born there today are still by default non-citizen US nationals (unless they are born to a US citizen parent who qualifies to transmit citizenship).

As for incorporated territories, US citizenship would have been extended to the territory when it was incorporated, if it had not already been extended otherwise. For the most recent two incorporated territories:

• Hawaii was annexed in 1898, but was incorporated in 1900 by the Hawaiian Organic Act of 1900 (as mentioned in the US Supreme Court decision in Hawaii v. Mankichi (1903)), which applied the Constitution and laws of the US to the Hawaii Territory the same as elsewhere in the US. People born after that had US citizenship at birth. People born before that were automatically granted US citizenship; they did not need to apply for it. (The Nationality Act of 1940 and Immigration and Nationality Act of 1952 also explicitly included Hawaii as part of the United States for nationality purposes, leaving no doubt after that.)
• Alaska was purchased in 1867, and was incorporated by the Alaska purchase treaty, according to the US Supreme Court decision in Rassmussen v. United States (1905). Non-Native-Americans born after that had US citizenship at birth. Non-Native-Americans born before that who did not elect to return to Russia were automatically granted US citizenship. (The Nationality Act of 1940 and Immigration and Nationality Act of 1952 also explicitly included Alaska as part of the United States for nationality purposes, leaving no doubt after that.)

Regarding eligibility to be US President: To be eligible to be President or Vice President of the US, you need to have been a "natural-born citizen", widely interpreted as having been a US citizen at birth. So for someone claiming US citizenship based on birth in a territory, you need to look at when the birth occurred compared to when the grant of citizenship occurred. If they were born after citizenship was granted to the territory, then they would have automatically been a US citizen at birth, and thus eligible to be President or VP. But if they were born before citizenship was granted to the territory, even if the law granting citizenship granted citizenship to people born before the law, it would not have made the person a "natural-born citizen", unless the person had citizenship at birth through another basis (e.g. birth to a US citizen parent who qualified to transmit citizenship to a child born abroad).

Answer 4

Electors are a state right, not an individual right.

Article II, Section 1, Paragraph 2 of the United States Constitution says:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

As such, the number of citizens living in a territory is irrelevant when it comes to federal elections because electors are not actually a right of citizenship. Puerto Rico, American Samoa, Guam, Northern Mariana Islands, and the US Virgin Islands are not states; so, their governments are not entitled to Electors. Technically speaking, all of America's territories presently have enough population to apply for statehood, but they are "unincorporated" territories. This means that Congress has voted against allowing them to become full fledged states for one reason or another and that only parts of the US constitution apply to them.

Presently, Puerto Rico is the only territory that expresses much interest in becoming incorporated, since a territory's government has to give up some of its autonomy to become a state, not all territories want to.

As for the Residency Requirement

Part of living in an unincorporated territory means that Congress decides on a per-territory basis, what parts of US Law, including the Constitution, apply to them. For example, an American Samoan can not become president because the US has expressly forbidden Samoans from serving in most Federal offices whereas Puerto Ricans have much more rights to serve in government positions, but lack certain other rights like Article 9 protection against Bills of Attainder and Ex Post Facto laws (issued by Congress).

Under the The Jones-Shafroth Act of 1917 Puerto Ricans were granted "Full Citizenship" under US law, and with that, they are generally considered Residents of the United States, so there is nothing expressly stopping a Puerto Rican from running for president, but he'd have an extra hard time of it because his right citizenship which allows him to become president is not protected the Constitution. So, if Congress decided they did not want him, they could simply vote to take away his right to run whenever they want.