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Unincorporated territory is a legal term of art in United States law denoting an area controlled by the government of the U.S. "where fundamental rights apply as a matter of law, but other constitutional rights are not available". Selected constitutional provisions variously apply depending on Congressional Organic Acts and judicial rulings according to U.S. constitutional practice, local tradition and law. All five modern inhabited territories are organized but unincorporated. There are nine uninhabited US possessions; only Palmyra Atoll among them is incorporated. See Territories of the United States and Unorganized territory.
All modern inhabited territories under the control of the federal government can be considered as part of the "United States" for purposes of law as defined in specific legislation. But the judicial term "unincorporated" was coined to legitimize the U.S. late 19th century territorial acquisition without citizenship and their administration without constitutional protections temporarily until Congress made other provisions. The case law allowed Congress to impose discriminatory tax regimes with the effect of a protective tariff upon territorial regions which were not domestic states.
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 continental 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.
To define what is an unincorporated territory, in Balzac v. People of Porto Rico, 258 U.S. 298, 312 (1922), the Court used 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.
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.". 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.
|American Samoa||55,519||197.1 km2||Pacific|
|Northern Mariana Islands||53,883||463.63 km2||Pacific|
|Puerto Rico||3,706,690||9,104 km2||North America|
|United States Virgin Islands||109,750||346.36 km2||North America|
|Baker Island||Uninhabited||2.1 km2||Pacific|
|Howland Island||Uninhabited||1.8 km2||Pacific|
|Jarvis Island||Uninhabited||4.5 km2||Pacific|
|Johnston Atoll||Uninhabited||2.67 km2||Pacific|
|Kingman Reef||Uninhabited||76 km2||Pacific|
|Midway Atoll||Uninhabited||6.2 km2||Pacific|
|Navassa Island||Uninhabited||5.2 km2||North America|
|Wake Island||120||7.38 km2||Pacific|
The 1898 Treaty of Paris came into 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 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 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.
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 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 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.
The Legislative Assembly of Puerto Rico has enacted a concurrent resolution to request the President and the Congress of the United States to respond diligently and effectively, and to act on the demand of the people of Puerto Rico, as freely and democratically expressed in the plebiscite held on November 6, 2012, to end, once and for all, its current form of territorial status and to begin the process to admit Puerto Rico to the Union as a State.
1. Puerto Rico. Scholars could agree as of 2009 in the Boston College Law Review, “Regardless of how Puerto Rico looked in 1901 when the Insular Cases were decided, or in 1922, today, Puerto Rico seems to be the paradigm of an incorporated territory as modern jurisprudence understands that legal term of art.” In November 2008 a district court judge ruled that a sequence of prior Congressional actions had had the cumulative effect of changing Puerto Rico's status to incorporated.