STATEMENT OF THE HONORABLE LUIS G. FORTUÑO

RESIDENT COMMISSIONER

OF PUERTO RICO IN CONGRESS

U.S. HOUSE OF REPRESENTATIVES

COMMITTEE ON ENERGY AND NATURAL RESOURCES

U.S. SENATE

November 15, 2006

PUERTO RICO STATUS: HISTORY, LAW AND POLITICS

The report of the President's Task Force on Puerto Rico and legislation
to implement its recommendations in a manner approved by Congress is
imperative to achieve a democratic form of government at the national
level for the 4 million U.S. citizens in Puerto Rico.

The self-determination and political status resolution process in Puerto
Rico is in a state of arrest, due to the ill-defined and confusing state
of federal law and policy concerning Puerto Rico's status options. As a
result, Puerto Rico remains the last large and heavily populated U.S.
territory living under the anachronisms of America's imperial
experiments in the distant past.

There are many here in Washington who promise to respect whatever status
choice Puerto Rico chooses, but in the next breath say the problem is we
can not make up our minds. Yet, the reason we do not have majority rule
in Puerto Rico on the status issue is that Congress has failed to act in
accordance with U.S. historical practice and constitutional precedents
for territorial status resolution.

Without becoming unduly legalistic, let me say that the political
dilemma we face is rooted in fatally flawed federal jurisprudence that
has deviated since 1922 from the preceding 135 years of American
territorial law going back to the Northwest Ordinance of 1787.

The historical norms for territorial status resolution were:

-   Withholding U.S. citizenship and adopting a policy of
    non-incorporation leading to independence, as in the case of the
    Philippines, or

-   Conferral of U.S. citizenship, triggering application of the U.S.
    Constitution and incorporation, the result confirmed by the U.S.
    Supreme Court in the cases of Alaska and Hawaii. *Hawaii v.
    Mankichi*, 190 U.S. 197 (1903); *Rassmussen v. U.S.*, 197 U.S. 516
    (1905).

In 1901, the Supreme Court had ruled that Congress could govern the
non-citizen populations of the Philippines and Puerto Rico as
non-incorporated territories under U.S. nationality without extending
the U.S. Constitution. *Downes v. Bidwell*, 182 U.S. 244 (1901) In
*Rassmussen*, however, the Supreme Court ruled that territories with
U.S. citizen populations were incorporated into the nation, and that the
U.S. Constitution applied by its own force consistent with territorial
status.

Thus, the Alaska and Hawaii cases on extension of the U.S. Constitution
should have been applied to Puerto Rico when Congress extended U.S.
citizenship in 1917. Instead, in 1922 a deeply divided U.S. Supreme
Court made a fateful error and decided, notwithstanding the conferral of
U.S. citizenship, that extension of the U.S. Constitution to Puerto Rico
should be left to the discretion of Congress. *Balzac v. Puerto Rico*,
258 U.S. 298.

The Balzac decision was a 5-4 ruling that gave Congress license to
govern the U.S. citizens of Puerto Rico in the same manner as
non-citizens in non-incorporated territories, without the restraints or
protection of the U.S. Constitution. Although statements of justices
indicate that the Supreme Court clearly expected this to be temporary
until Congress adopted a status resolution policy, Congress has ruled
Puerto Rico as a vestige of empire past, without a democratic form of
government at the national level for 108 years.

For territories under the Northwest Ordinance, incorporation and
eventual statehood were the only options. Modern principles of
self-determination, under the U.N. Charter and human rights treaties to
which the U.S. is a party, mean that Puerto Rico also has the option of
becoming a separate sovereign nation through independence or free
association.

However, the existence of additional options does not eliminate the
problem created by extending U.S. citizenship but not the U.S.
Constitution to Puerto Rico while it is a U.S. territory. Having denied
protections of the U.S. Constitution to the U.S. citizens of Puerto Rico
wrongfully for more than eight decades as a matter of domestic law,
Congress needs to act immediately to correct the judicial error of the
Balzac ruling in 1922 and sponsor a self-determination process
satisfying both domestic and international standards.

LOCAL STATUS IDEOLOGY

It was not until 1950, that Congress authorized a local constitution
allowing self-government only in local affairs not otherwise governed by
federal laws, which are applied by Congress without consent of the
citizens.

The controlling faction of the territory's "commonwealth" party asserts
Puerto Rico is no longer a territory, and that adoption of the local
constitution in 1952 established Puerto Rico as a "commonwealth" with
national sovereignty. (Another faction of the party, which favors free
association does not subscribe to this fiction.) The current Governor is
President of the party and he asserts that it is only a matter of time
before the U.S. accepts that \--

-   Puerto Rico is not a U.S. territory, but a sovereign nation

-   Federal laws, including federal wiretap and death penalty statutes,
    can apply in Puerto Rico only upon consent of the local government

-   Federal law is no longer supreme, but co-equal to Puerto Rican law

-   Puerto Rico has sovereign power to enter into international
    agreements in its own name and right as a nation, and conduct its
    own international relations

-   U.S. citizenship and political union is guaranteed forever, as in
    the case of a state of the union

-   Federal services, programs and benefits will increase and be
    guaranteed, but Puerto Ricans will always be exempt from federal
    income tax

-   Puerto Rico will remain within the customs territory of the U.S.,
    but enter into its own trade agreements with other nations

-   Puerto Rico will have the power to limit the jurisdiction and
    operation of the federal court.

-   The U.S. can permanently and irrevocably cede its sovereign power
    over Puerto Rico to the "commonwealth", and retain only such
    sovereign powers in Puerto Rico as may be delegated to the U.S. by
    Puerto Rico.

-   Under the innocuous label "Development of Commonwealth", this
    virtual confederacy is unalterable by Congress in perpetuity without
    local consent

-   Disputes between governments would be settled by
    sovereign-to-sovereign negotiations since federal law is no longer
    supreme.

Based on this status doctrine, the Governor asserts that Puerto Rico can
have the benefits of both statehood and independence, and not be
required to make the difficult choice between the two. Accordingly, the
Governor argues that a choice between options recognized under federal
law will create an "artificial majority", because statehood and
independence supporters will "gang up" against the territory status that
he insists Puerto Rico does not have.

The Governor proposes that the solution to the status question is for
Congress to authorize a local convention to choose among statehood,
independence, and a development of the current status -- which he
intends would be his "Development of Commonwealth" proposal.

He asserts that residents of Puerto Rico support "commonwealth" based
upon a slight plurality in a 1993 local referendum, when less than a
majority voted for a "Commonwealth" proposal that was not accepted by
the Clinton Administration or in the Congress.

In 1998, another local status vote did not produce a majority vote for
any status option. The current status as recognized under federal law
was rejected by 99.9% of the voters.

These local votes demonstrate Puerto Rico does not have majority rule on
status, and the U.S. citizens of the territory have effectively
withdrawn consent to the current territory status.

The local constitutional convention proposal of the Governor is simply a
diversionary tactic. It is not needed because Article VII, Section 2 of
our local constitution already provides the exclusive procedure for
calling a constitutional convention, with a more democratic procedure
based on approval of a convention by a majority of voters.

To confuse, confound and befuddle his own party, the people of Puerto
Rico, and Congress, the Governor's party has commissioned respected
lawyers to cobble together the best possible legal arguments supporting
the commonwealth party platform making Puerto Rico a nation permanently
linked to the U.S. in a confederation.

I am attaching a series of scholarly commentaries which reject the legal
briefs the Governor has presented to Congress and the White House, in a
failed attempt to derail federal policy on Puerto Rico's status that is
compatible with the Constitution and laws of the United States.

CONCLUSION

There are many reasons for Congress to authorize a federally sponsored
plebiscite in Puerto Rico, but nothing is truly more important than the
patriotism of the Puerto Rican men and women who have served with honor
and distinction in every war sine we became citizens of the United
States in 1917, 89 years ago. Puerto Ricans have fought in defense of
our Nation, and the democratic principles of freedom for which it
stands, since World War 1. They have fought, and many have made the
ultimate sacrifice, on the battlefields of Europe and Africa, the
Pacific and Korea, Vietnam and the Middle East, and recently in
Afghanistan and Iraq. I regularly visit our wounded at Walter Reed, and
am honored to witness first-hand their dedication and love for our
Nation.

We have made a disproportionate contribution to our current effort on
the War on Terrorism. We have earned our keep, and we deserve
congressional consideration of our request for a fair and legitimate
process to exercise our right to self-determination.

After 108 years of territorial status, Puerto Rico remains the longest
standing territory in the history of the United States. Congress retains
jurisdiction over the Puerto Rican status issue, so we have a
constitutional responsibility to address the issue. Although Congress
has consistently expressed its commitment to respect the right of
self-determination of the people of Puerto Rico, Congress has never
sponsored a plebiscite to allow the people of Puerto Rico to express
themselves on their preference based on options that are compatible with
the U.S. Constitution and basic laws and policies of the United States.

The only way to restore majority rule locally and achieve democracy and
government by consent at the national level is to begin an orderly
process of self-determination. I support the recommendation of the Task
Force established by President Clinton and comprised of senior
appointees of President Bush: a congressionally-provided for plebiscite
on whether to seek a non-territory status. Only if a majority vote to
seek a new status, would a second step be taken to choose among the
options accepted by the federal government and specifically, by the
Justice Department under Presidents George H.W. Bush and Bill Clinton,
and the current President, as permanent in nature.

This is a moderate and measured approach to the issue. It is the minimum
that Congress can \-- and should \-- do to fulfill its historical role
under the U.S. Constitution to redeem the promise of America in Puerto
Rico.

**San Juan Star, *Viewpoint*, September 7, 2006, p. 55**

**Ideology won't salvage "enhanced commonwealth"**

*Dr. William Cleary*

Critics of the White House report on Puerto Rico's status suggest the
President's Task Force did not adequately consider legal theories about
"mutual consent" or the "unalterable bilateral pact".

To the contrary, the record is clear that the President's Task Force
consulted the Governor, his lawyers and lobbyists, as well as other
advocates of "enhanced commonwealth". Non-partisan and ideologically
unaffiliated experts were also consulted.

After listening carefully and weighing the legal arguments on both
sides, the Task Force issued a report that concludes Congress can not
create a legally binding or enforceable "vested right" to
"commonwealth".

**San Juan Star, *Viewpoint*, September 7, 2006, p. 55**

**Ideology won't salvage "enhanced commonwealth"**

*Dr. William Cleary*

Critics of the White House report on Puerto Rico's status suggest the
President's Task Force did not adequately consider legal theories about
"mutual consent" or the "unalterable bilateral pact".

To the contrary, the record is clear that the President's Task Force
consulted the Governor, his lawyers and lobbyists, as well as other
advocates of "enhanced commonwealth". Non-partisan and ideologically
unaffiliated experts were also consulted.

After listening carefully and weighing the legal arguments on both
sides, the Task Force issued a report that concludes Congress can not
create a legally binding or enforceable "vested right" to
"commonwealth".

In response, the legal "spin doctors" cite a federal legal case from
1810 about the enforcement of property rights "vested" under a contract
with the federal government that has been fully executed. On the basis
of that property rights case, it has been argued that a territory can
acquire an enforceable "vested right" to a political status.

This is misleading, because, unlike vested property rights, Puerto
Rico's status remains a political question vested in Congress by Article
IX of the Treaty of Paris. As a result, Puerto Rico remains subject to
plenary powers Congress retains under the territorial clause of the
federal constitution, subject to "fundamental rights" that have not been
clearly defined by Congress or the federal courts in a territorial law
context.

However, a 1994 Department of Justice legal opinion on status concluded
that,

> "...there could not be an enforceable vested right in a political
> status: hence...mutual consent clauses were ineffective because they
> would not bind a future Congress...Legislation relating to the
> governance of non-state areas does not create any rights or status
> protected...against repeal or amendment by subsequent
> legislation...\[which} leads to the question of whether...a provision
> that legislation shall not be modified or repealed without the consent
> of the...non-state area has the effect of creating ...a specific
> status amounting to a property right within the meaning of the Due
> Process Clause...this question must be answered in the negative
> because...sovereign governmental powers can not be contracted
> away...and a specific political relationship does not constitute
> 'property' within the meaning of the Fifth Amendment".

Undaunted, advocates of a binding status compact continue to argue that
one Congress can bind another from exercising the territorial power, and
they even point to the "unalterable compact" language in the Northwest
Ordinance of 1787 to support their opinions.

Ironically, the Northwest Ordinance is actually a statutory declaration
of intent to incorporate territories existing at that time under the
Articles of Confederation, and to admit states formed in the territories
according to provisions of the ordinance. What was "unalterable" about
the "compact" under the Northwest Ordinance was the U.S. assertion of
sovereignty over the territories as a basis for unilateral incorporation
and statehood.

In fact, the provisions of the Northwest Ordinance relating to
territorial governments prior to statehood were not included in the six
articles of the "unalterable compact". Rather, under Paragraph 12 of the
ordinance, the local territorial governments were referred to as
"temporary", which continues to be accurate today for Puerto Rico and
all other territories.

The articles of "compact" that are "unalterable" begin at Paragraph 14
of the Northwest Ordinance, and Article 4 of this so-called "unalterable
compact" expressly states that it was subject to "...such
alterations...as shall be constitutionally made..." to the Articles of
Confederation, and "...all acts and ordinances of the United States
Congress".

Consistent with these provisions, in 1789 the first Congress of the
United States amended the Northwest Ordinance without consent of the
territories, to conform it to the new federal constitution. Thus, even
the Northwest Ordinance, cited as a "compact...unalterable, unless by
common consent", was by its express terms subject to alteration by
Congress!

The weakness of legal arguments supporting "enhanced commonwealth"
ideology is the reason it has been rejected by Congress for the last 50
years, not because the autonomy formula has not been understood and duly
considered.

All Americans have a right to full and equal national citizenship, or
nationhood. If denial of that right is to be continued under
"commonwealth", at the very least that should be based on a clear
majority vote consenting to continuation of the current status until a
permanent status with fully equal and democratic rights of national
citizenship is achieved.

*Dr. William Cleary has a Ph.D. and an LL.M from Hokkaido University,
and he is a member of the bar in California, New York, Federated States
of Micronesia and Guam.*

**San Juan Star, *Viewpoint*, October 7, 2006, p. 14**

**Acevedo Vila is wrong on language rights**

Dr. William Cleary

In his last state of the nation speech, Spanish Prime Minister Jose Luis
Rodriguez Zapatero announced a policy to pay \$1,300.00 scholarships to
young Spanish citizens who participate in English language programs.
Apparently Rodriguez Zapatero believes Spain's culture is not only
strong enough to survive acquisition of English by the new generation,
but that it will give Spain a competitive edge in the world economy.

In contrast, Gov. Acevedo Vila is using fear about language rights to
defend his party's separatist political status ideology. For example,
after the U.S. Senate adopted a declaration that "English is the common
and unifying language of the United States", Acevedo Vila cited it as
proof statehood leaders had "not been truthful with the people" by
advocating the possibility of a Spanish-speaking state.

The Governor went so far as to taunt statehood leaders about the
"fallacy" of statehood with Spanish in school and the courts. Apparently
he failed to listen carefully to what happened in the U.S. Senate,
because the final language policy in the immigration reform bill, as
offered by Sen. Ken Salazar of Colorado, deleted the provision making
English an "official language".

Of even greater interest were the remarks of Sen. Jeff Bingaman from the
State of New Mexico, supporting the Salazar amendment. Sen. Bingaman
pointed out that New Mexico was a Spanish speaking U.S. territory in
1911, and that the vast majority of U.S. citizens in the territory spoke
only or mostly Spanish, and significantly outnumbered those who spoke
only or mostly English.

Yet, in 1912 New Mexico was admitted as a state of the union on an equal
footing with all the other states. Ironically, those who spoke English
were in the minority may have worried about discrimination based on
language skills as much as those who spoke Spanish!

On the floor of the U.S. Senate during the recent debate on this issue,
Sen. Bingaman described the situation in 1912 and the solutions found:

> "People were very concerned that the right of individuals in the state
> to speak either language would be preserved and that no one be
> discriminated against...We wrote a provision in our constitution which
> says \[the rights of citizens\]...shall never be restricted\...on
> account of...inability to speak, read or write the English or Spanish
> language...The general rule in my state and in my state's constitution
> is that people shall not be discriminated against in their dealings
> with the government by virtue of their inability to speak English."

Contrary to Acevedo Vila's disdainful assertions, the language rights
described by Sen. Bingaman were guaranteed, public schools and the
courts included, by Art. VII, Sec 3 of the New Mexico state
constitution, which read: "The right of any citizen of the state to
vote, hold office, or sit upon juries, shall never be restricted...on
account of...inability to speak, read or write the English or Spanish
languages..."

Art. XII, Sec. 8 provided "The legislature shall provide for the
training of teachers...so that they may become proficient in both the
English and Spanish languages, to qualify them to teach Spanish-speaking
pupils and students in the public schools...and...facilitate the
teaching of the English language...to such pupils and students."

Sen. Bingaman is the senior Democrat on the U.S. Senate committee with
jurisdiction over Puerto Rico's political status, and his remarks about
the language rights under a state constitution and the 10^th^ Amendment
to the federal constitution are directly relevant to Puerto Rico. It is
territorial status with limited self-government under "commonwealth"
that leaves the territory without any defense against a federal language
policy Congress makes applicable to Puerto Rico.

The New Mexico experience shows that a Spanish-speaking territory can
make the transition to statehood without loss of Spanish language
rights. However, in recent years New Mexico and other states also have
adopted the English-plus policy, promoting English proficiency to open
up doors of economic opportunity to all citizens.

When both state governments in America and the Government of Spain
recognize the importance of English and Spanish language empowerment,
the governor's use of language to exploit social fears rooted in the
colonial experience looks like political manipulation, to keep his
people from leaving the colonial legacy of "commonwealth" behind.

*Dr. William Cleary has a Ph.D. and an LL.M from Hokkaido University,
and he is a member of the bar in California, New York, Federated States
of Micronesia and Guam.*

**San Juan Star, *Viewpoint*, August 18, 2006, p. 14**

**"Dependent sovereign" status no solution**

Dr. William Cleary

In the course of the political status debate in Puerto Rico, it has been
suggested that U.S. citizens in Puerto Rico look to the political status
of the American Indian tribes to address Puerto Rico's current
undemocratic status under the sovereignty of Congress.

It would be hard to imagine a worse fate for a U.S. territory than to
adopt a "special dependent sovereign" model based on the federal
relations with native tribes, only to end up living on a self-imposed
"reservation" under federal power and still without equal civil rights.

The status of Indian tribes under the Indian Commerce and Treaty Clauses
of the U.S. Constitution is subject to the same kind of unrestrained
Congressional power as unincorporated territory status under the
Territorial Clause. However, there are obvious reasons Indian tribe
status is not a model for territories to emulate, and vice versa.

For example, individually Native Americans have the option of full
democratic participation and equal citizenship under the federal
constitution, rights not available in the territories. On the other
hand, unincorporated territories have the options of independence, free
association or statehood to end dependent status, choices not available
to Indian nations.

So while both territories and Indian nations exist in conditions of
encumbered sovereignty, trading places is no solution for territories or
the Indian peoples.

Ignoring these realities, it has been argued that the concept of Indian
sovereignty can be a model for a so-called "permanent autonomic
covenant". This is really just a variation of the "enhanced
commonwealth" formula, pretending commonwealth can be made
non-territorial by an irrevocable gift of autonomy from Congress.

Advocates of this status theory cite the 2004 U.S. Supreme Court ruling
in *U.S. v. Lara* to support the "dependent sovereign" theory of
autonomy. Unfortunately, this misinterprets the case as a clarion call
for all "special dependent sovereigns" under the U.S. flag to rejoice in
the plenary power of Congress to benevolently determine their destiny.

The flawed assumption is that Congress can use its powers to confer a
permanent form of autonomy that makes commonwealth democratic and
non-territorial. The hard truth is that Congress can not selectively or
partially cede federal sovereign power over territories, or Indian
tribes.

Rather than refuting this, the *Lara* case recognizes the power of
Congress to grant autonomy, *and to modify it, expand or reduce it, or
take it away!* The one thing the ruling in *Lara* makes clear is that
Congress can not dispose of its plenary power over such dependencies by
statute or agreement, unless it also disposes of U.S. sovereignty.

The *Lara* ruling specifically states that earlier decisions defining
the degree of local autonomy and sovereignty for tribes "*...did not set
forth constitutional limits that prohibit Congress from...taking actions
that modify or adjust the tribe's status."*

Based on a misreading of the *Lara* case, it has been argued that
dependent sovereign status, with autonomy subject to Congressional
supremacy, is the best Puerto Rico can do.

The defeated Indian nations had no choice but to accept that fate, but
Indian nation sovereignty is not a triumph of democracy and
self-determination.

Asking your conqueror or colonial master to bestow symbolic sovereignty
is a position of weakness, not strength.

In Puerto Rico's own colonial experience, Spain granted the so-called
Charter of Autonomy, only to cede Puerto Rico to the United States
without local consent! So much for autonomy bestowed on "dependent
sovereigns" at the pleasure of a supreme sovereign power.

The U.S. citizens of Puerto Rico deserve the sovereign rights of a state
or nation, not a revocable "gift" of local self-government.

Puerto Rico was annexed in 1899, and the issue is when annexation will
end based on full government by consent. That can come through
statehood, as it did for Hawaii; independence, as in the case of the
Philippines; or free association, as in the case of Micronesia.

Puerto Rico should reject the call to return to the "reservation", or
the plantation, or whatever else may be proposed other than full and
equal national citizenship.

*Dr. William Cleary has a Ph.D. and an LL.M from Hokkaido University,
and he is a member of the bar in California, New York, Federated States
of Micronesia and Guam.*