Territorial Courts, Constitutions, and Organic Acts, Explained
There are five inhabited U.S. territories, each with its own court system and governing documents.
There are five inhabited U.S. territories, each with its own court system and governing documents.
Over 3.5 million people reside in the five inhabited U.S. territories of American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands. Each territory has its own court system and constitution or similar governing document. This explainer provides a brief overview of territorial courts and constitutions, including some of the similarities and differences between state and territorial systems.
The United States possesses 14 insular areas in the Caribbean and the Pacific that are colloquially known as the territories. These are neither sovereign entities, like tribal nations, nor federal districts, like the District of Columbia. Instead, they exercise self-government against the backdrop of Article IV, Section 3 of the Constitution, which grants Congress plenary authority over U.S. territories.
These territories are remnants of a period of U.S. overseas colonization that spanned the end of the 19th century and the 20th century, including the U.S. possession of the Philippines from 1898–1946. Individuals born in Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands are all American citizens, while those born in American Samoa are U.S. nationals. (Last year, the Supreme Court declined to hear an appeal seeking to give U.S. citizenship to those born in American Samoa.) None of the territories have voting representation in Congress or participate in the Electoral College. Each of the five inhabited territories elects a nonvoting member of Congress called a delegate — or, in the case of Puerto Rico, a resident commissioner. The United States maintains a large military presence in the territories, which heavily impacts the rights of Americans that reside there.
Much of the scholarship on the territories has focused on a line of Supreme Court decisions known as the Insular Cases, which established the incorporation framework under which the federal Constitution applies fully and automatically only to territories that are deemed incorporated, meaning in some sense bound for statehood. For those that are unincorporated, which include all the territories except for Palmyra Atoll, only fundamental constitutional guarantees apply, but Congress is free to extend additional constitutional protections via legislation. The incorporation doctrine is heavily steeped in racist underpinnings, describing the inhabitants of the territories as “savage” and “half civilized” in the service of a colonial project. It’s often compared to Plessy v. Ferguson, which established the “separate but equal” doctrine and was decided just a few years prior by a very similar court, but it remains precedential. The Supreme Court declined a petition for cert to reconsider the Insular Cases as recently as last year.
Beyond the federal Constitution, however, residents of the territories receive additional constitutional protections from territorial constitutions and from organic acts that in many ways operate as de facto constitutions. Under the constitutional framework governing the territories, those documents had to be approved by Congress before taking effect. The one exception is the Northern Mariana Islands’ constitution, which was required by the covenant that established it as a territory, so additional authorization by Congress was not required.
Congress approved the constitutions of Puerto Rico and American Samoa in 1952 and 1960, respectively, and the Northern Mariana Islands adopted its constitution in 1977. Congress passed the Organic Act of Guam in 1950 and the Revised Organic Act of the Virgin Islands in 1954. Guam and the U.S. Virgin Islands have since held constitutional conventions. None have so far resulted in the adoption of a constitution, though legislation was introduced in 2023 to adopt the U.S. Virgin Islands’ organic act as its constitution.
These constitutions and organic acts establish territorial legislative, executive, and judicial branches and contain bills of rights. As scholars of the territories have noted, in many ways, these documents function like state constitutions, in that each governing document contains analogues to all or most of the federal bill of rights, including rights to free speech, due process, and equal protection, and most of these documents also contain positive rights.
For example, Puerto Rico’s constitution provides employees the right to freely choose their occupation, to receive a reasonable minimum salary, and to strike. The Northern Mariana Islands’ constitution provides a right to clean and healthful environment. Guam’s organic act, the U.S. Virgin Islands’ organic act, and American Samoa’s constitution require that they operate a public education system.
Of course, there are also significant differences between state constitutions and territorial constitutions and organic acts. Article IV’s Territorial Clause grants Congress plenary authority over the territories, and there are open questions as to whether Congress has the power to repeal or amend the constitutions of Puerto Rico and the Northern Mariana Islands. Guam and the U.S. Virgin Islands’ lack of a constitution means that Congress must approve any amendments to their organic acts, while American Samoa’s constitution grants the U.S. secretary of the interior the power to approve constitutional amendments. A separate federal statute requires that amendments in American Samoa also be approved by Congress.
At a structural level, territorial court systems share many of the features of state court systems. The judicial branches in each of the territories consist of local trial courts and high appellate courts, and judges are either elected or appointed pursuant to local law. In the U.S. Virgin Islands, its supreme court sits atop the territory’s judicial branch, and the superior court sits below the supreme court as a trial-level court. Puerto Rico has a supreme court, a circuit court of appeal, and both municipal and district courts.
Guam, the Northern Mariana Islands, and the U.S. Virgin Islands also each have federal Article IV courts, and Puerto Rico has a federal Article III court. American Samoa has no federal court, though Congress has granted its territorial high court federal jurisdiction over certain matters, such as maritime law. All other American Samoan cases concerning federal law are adjudicated in federal courts outside the territory, usually in Hawaii or the District of Columbia.
Like state courts, justices on most territorial high courts have the final word on matters of local territorial law and territorial constitutional interpretation. In American Samoa, however, decisions by its high court are subject to review by the U.S. secretary of the interior, and parties may challenge decisions by the secretary to not intervene by filing suit in federal court. Last year, voters rejected an amendment that would have eliminated this power.
Some of these courts have interpreted their territorial analogues as providing greater protection than the federal Constitution, sometimes citing state constitutional law in their analyses. For example, in 2019, the Supreme Court of the U.S. Virgin Islands struck down a law capping noneconomic damages in automobile accidents, ruling that the U.S. Virgin Islands’ analogue to equal protection exceeded the protections of the federal Equal Protection Clause. In doing so, the court affirmed that Congress “intended for this Court to exercise the power to interpret the Virgin Islands Bill of Rights in the same manner that a state court of last resort may interpret the Bill of Rights to a state constitution.”
To be sure, there are also critical differences between state courts and territorial courts. In American Samoa, its constitution provides that high court justices are appointed by the U.S. secretary of the interior rather than by locally accountable officials. The high courts of Guam, the Northern Mariana Islands, and the U.S. Virgin Islands did not attain full independence from federal court oversight over matters of territorial law until the 2000s.
The status of territorial organic acts as federal statutes also raises a complex set of questions about territorial courts’ powers to interpret these acts in a manner that is insulated from federal court review. While the U.S. Supreme Court has consistently affirmed that territorial courts receive deference over matters of “purely local concern,” the federal courts have occasionally overruled territorial courts’ own interpretations of their governing documents when those interpretations impact nonlocal affairs.
In Limtiaco v. Camacho, for example, the Supreme Court declined to defer to the Supreme Court of Guam’s interpretation of a provision of its own organic act limiting the amount of debt Guam could incur on the grounds that territorial insolvency would have implications for the United States. And in Guam v. Guerrero, the Ninth Circuit Court of Appeals explicitly rejected the Supreme Court of Guam’s interpretation of Guam’s Free Exercise Clause analogue, which would have provided greater protections than the federal Constitution, on the theory that Guam’s organic act is a federal law over which the Ninth Circuit has final interpretive authority. (The case was decided at time when the Ninth Circuit had jurisdiction over appeals from Guam’s high court concerning both federal and territorial law.) Finally, there continue to be jurisdictional disputes between local courts and the federal courts of the territories. Federal preemption in matters of bankruptcy looms large, particularly in Puerto Rico, which has faced a dire economic situation in recent years.
For those interested in learning about territorial court systems and territorial law, a list of resources is provided below.
Territorial Organic Acts
Territorial High Courts
Library of Congress Resources
Government Accountability Office Reports
Michael Milov-Cordoba is a fellow at the Brennan Center for Justice.
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