1

United States Virgin Islands Advisory Committee to the U.S. Commission on Civil Rights

The Status of Civil Rights in 

the U.S. Virgin Islands

December 2023
2

United States Virgin Islands Advisory Committee to the 

U.S. Commission on Civil Rights

 Ms. Pamela Lynn Colon, J.D., Chair, St. Croix

Hon. Alan D. Smith, J.D. (Ret.), Vice-Chair, St. John

Mr. Michael Bornn, St. Thomas

Mr. Nash Davis, J.D., St. Thomas

Dr. Arlene Garcia, Ed. D., St. Croix

Ms. Antoinette Gumbs-Hecht, St. Thomas

Dr. Kenny A. Hendrickson, Ph. D., St. Croix

Dr. Molly Perry, Ph. D., St. Thomas

This work is the product of the US Virgin Islands Advisory Committee to the United States 

Commission on Civil Rights. The report may rely on testimony, studies, and data generated from 

third parties. This report was reviewed by Commission staff only for legal sufficiency and 

procedural compliance with Commission policies. The views, findings, and recommendations 

expressed in this report are those of a majority of the US Virgin Islands Advisory Committee and 

do not necessarily represent the views of the Commission, nor do they represent the policies of the 

United States Government. 
3 

Letter of Transmittal

The US Virgin Islands Advisory Committee to the U.S. Commission on Civil Rights submits this 

report detailing civil rights implications of the legal and political status of the US Virgin Islands. 

The Committee submits this report as part of its responsibility to study and report on civil rights 

issues in the Territory. The contents of this report are primarily based on testimony presented to the 

Committee during virtual hearings on January 23, July 18, and September 21, 2023. 

This report was adopted by a vote of 5 to 0 at a committee meeting held on November 11, 2023. 

The dissenting member(s) was/were provided an opportunity to prepare a dissenting statement. Any 

such statement(s) is/are hereby appended to the report.

Based on the findings of this report, the Committee offers to the Commission recommendations for 

addressing these issues of upmost importance. The Committee hopes that the information presented 

here aids the Commission in its continued work on this topic. 

The Committee noted the parallel of its work to that of the founding mission of the Commission 

itself to study alleged deprivations of civil rights, including the right to vote. The report submitted 

investigated what is likely the largest group United States citizens (approximately 3.5 million) who 

are disenfranchised from their right to vote for the United States President. This disenfranchisement 

is based solely upon the zip code of these citizens, despite their having residence on United States 

soil and being otherwise fully eligible to vote in presidential elections. Indeed, the major political 

parties have recognized this right and permit those living in the USVI and other U.S. “territories” 

the right to cast ballots in primary elections for the U.S. presidency. 

The disenfranchisement of these citizens is the antithesis of the fundamental nature of the right of a 

citizenry to vote in a democratic nation. It is contrary to the very notion of democracy itself and 

serves to create a second-tier citizenship in the United States “colonies.” At its core, this 

disenfranchisement renders those U.S. citizens living in the U.S.V.I. (and the other Territories) 

holding U.S. passports voiceless in a country that espouses the right to vote as “fundamental” and 

the basis for all authority given by the People to their government. 

The Committee finds this result repugnant to the values upon which this nation was founded and to 

the Mission of this Commission of “advancing civil rights.” 

The Committee greatly appreciates this Honorable Commission’s attention to the matters it has 

raised in this report and looks forward to continuing its work on behalf of the Commission through 
4

further study, investigation, research and analysis of this issue of fundamental concern to the 

federal government and the public.

Pamela Colon

Chair, U.S. Virgin Islands Advisory Committee
5

Table of Contents

Policy Brief.............................................................................................................................................11

Chapter One: Civil Rights in the U.S. Virgin Islands.....................................................................................22

I. Civil Rights as Defined by the U.S. Commission on Civil Rights.......................................................22

II. The Supremacy Clause and the Applica�on of the Cons�tu�on to the U.S. Virgin Islands............23

A. Sec�ons of the Cons�tu�on that Apply to the Virgin Islands.....................................................23

B. The Supremacy Clause...Part II....................................................................................................24

III. Ci�zenship and Civil Rights in the U.S. Virgin Islands......................................................................26

A. Ci�zenship...................................................................................................................................26

B. Self – Determina�on ...................................................................................................................27

C. Vo�ng ..........................................................................................................................................28

D. Representa�on............................................................................................................................30

E. Equal Access to Government Programs......................................................................................30

F. The Administra�on of Jus�ce......................................................................................................31

G. Diversity Jurisdic�on ...................................................................................................................31

H. Economic Concerns.....................................................................................................................32

Chapter Two: American Imperialism...........................................................................................................33

I. Founding of the United States of America......................................................................................33

A. The Northwest Ordinance...........................................................................................................36

II. The Insular Cases and the Applica�on of the Cons�tu�on to the U.S. VIRGIN ISLANDS ................38

A. American Expansion and Social Darwinism ................................................................................38

III. Purchase of the U.S. VIRGIN ISLANDS .........................................................................................48

IV. Current Status of the U.S. VIRGIN ISLANDS.....................................................................................51

V. Conclusion.......................................................................................................................................52

Findings.......................................................................................................................................................55

Recommenda�ons......................................................................................................................................55
6 

List of Figures

Figure 1: U.S. Virgin Islands: Sourced from CIA World Factbook ................................................................17

Figure 2: State Land Claims and Cessions...................................................................................................36

Figure 3 Northwest Territory of 1787 .........................................................................................................37

Figure 4: Danish Depic�on of U.S. VIRGIN ISLANDS Sale ............................................................................42

Figure 5: USA Depicted as Benefactor ........................................................................................................42

Figure 6: Philippines First Bath in Civiliza�on..............................................................................................43

Figure 7: U.S.A with Unexpected Newborn................................................................................................43

Figure 8: Philippine Delega�on to Paris Peace Talks..................................................................................43

Figure 9: Philippine Leader Emilio Aguinaldo.............................................................................................43

Figure 10 New Territories as Uncivilized Children.......................................................................................44
7 

Table of Authorities

Cases 

Afroyim v. Rusk, 387 U.S. 253 (1967)

Baker V. Carr, 369 U.S. 186 (1962) 

Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964)

Boumedine v. Bush, 553 U.S. 723 (2008) 

Brown v. Board of Education, 347 U.S. 483 (1954)

Brown v. United States, 141 F. 3d. 800 (8th Cir. 1998)

Caron v. First Penn. Bank, Terr. Ct. St. T. and St. J., 16 V.I. 169 (1979)

Downes v. Bidwell, 182 U.S. 244 (1901)

Dred Scott v. Sanford, 60 U.S. 393 (1857)

Efron ex. Rel. Efron v. U.S., 1 F. Supp. 2d 1468 (S.D. Fla. 1998)

Elk v. Wilkins, 112 U.S. 94 (1884)

Foster v. Nelson, 27 U.S. (2 Pet.) 253 (1829)

Government v. Bodle, C.A. 3d, 7 V.I. 507 (1970)

Hepburn v. Ellzey, 6 U.S. (2 Cranch) 445 (1805)

JDS Realty Corp. v. Gov. of the Virgin Islands, 824 F. 2d 256 (3rd Cir. 1987)

Koehler v. United States, 155 F. 3d. 262 (5th Cir. 1998)

Leg. of the V.I. v. DeJongh, 645 F. Supp. 2d 452 (D.V.I. 2009)

Lochner v. New York, 198 U.S. 45 (1905)

McColloch v. Maryland, 17 U.S. 316 (1819)

Plessy v. Ferguson, 163 U.S. 537 (1896)

Smith v. Gov. of the Virgin Islands, C.A. 3d. 136 (1967)

Terr. Court of the Virgin Islands v. Richards, D.C.V.I., 673 F. Supp. 152 (1987)

Underhill v. Hernandez, 168 U.S. 250, (1897)

U.S. v. Clarke, 33 U.S. (8 Pet.) 436 (1834)

U.S. v. Pollard, 209 F. Supp. 2d 525 (D.V.I. 2002)

U.S. v. Sanchez, 992 F. 2d 1143 (11th Cir. 1993)

U.S. v. Wong Kim Ark, 169 U.S. 649 (1898)

Whitney v. Robertson, 124 U.S. 

Wong Wing v. U.S., 163 U.S. 228 (1896)
8 

Treaties

Charter of the Organization of American States, February 27, 1967, 2 U.S.T. 2394 (1967)

International Covenant on Civil and Political Rights, Dec. 16, 1966, GA Resolution 2200A (XXI), TIAS 92-908 (1966)

Treaty of Peace, Friendship, limits, and Settlement Between the United States of America and the United Mexican States 

Concluded at Guadalupe Hidalgo (1848)

The Definitive Treaty of Peace (Treaty of Paris) (1783)

Treaty of Paris Between the United States of America and the Kingdom of Spain, U.S. – Spain, Dec. 10, 1898, 30 Stat. 1754. 

Treaty of Amity, Settlement, and Limits Between the United States of America and His Catholic Majesty of Spain (1819)

Convention Between the United States and the French Republic (1803)

Convention Between the United States and Denmark, ETC., U.S. – Den., Jan. 25, 1917, 39 Stat. 1706. 

United Nations, Charter of the United Nations, 24 October 1945, 1 U.N.T.S. 2394 (1945)

Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331 (1980)

Statutes

An Act to Confer U.S. Citizenship upon certain inhabitants of the Virgin Islands and to extend the naturalization laws thereto, 44 

Stat. 1234, Pub. Law 69-640 (1927)

An Act to Provide for an Exchange of Lands with the Indians Residing in any of the States or Territories, and for Their Removal 

West of the River Mississippi, Pub. L. 21-148, 4 Stat. 411 (1830)

Bennett Law, 1889 Wisc. Act 519 (1889)

Chinese Exclusion Act, Pub. L. 47-126, 22 Stat. 58 (1882)

Civil Rights Act of 1957, Pub. Law. 85-315, Sept. 9, 1957.

Dawes General Allotment Act, Pub. L. 49-105, 24 Stat. 388 (1887)

Geary Act, Pub. L. 52-60, 27 Stat. 25 (1892)

Immigration and Naturalization Act of 1952, 8 U.S.C. § 1402 (2000)

Nationality Act of 1940 (H.R. 9980) Pub. L. 76-853, 54 Stat. 1137

Ordinance for the Government of the Territory of the United States, NW of the River Ohio (Northwest Ordinance) (1787)

Page Act of 1875, Sect. 141, 18 Stat. 477 (1875)

Revised Organic Act of 1954, 68 Stat. 497

Scott Act, Pub. L. 50-1064, 25 Stat. 504 (1888)

U.S. Constitution, articles I – IV, and amendments X, XIII, XIV, XV 
9 

The U.S. Virgin Islands Advisory Committee to the United States Commission on Civil Rights 

would like to thank the following experts, luminaries in their respective fields, who appeared 

before the committee and provided the framework to explore the difficult questions posed in this 

study. 

Dr. Carlyle Corbin (Testimony on January 23, 2023)

Dr. Corbin is an international advisor on global governance and former Minister of State for External 

Affairs of the U.S. Virgin Islands Government. He has served as United Nations (U.N.) expert on selfdetermination for over two decades, and as independent expert for the United Nations Development 

Program on U.N. missions to Bermuda, and to the Turks and Caicos Islands, respectively. He has also been 

constitutional advisory to the Anguilla Constitutional and Electoral Reform Committee, political advisor to 

several chairs of the U.N. Decolonization Committee, Secretary-General of the Inter-Virgin Islands Council 

between governments of the British and U.S. Virgin Islands, and Secretary-General of the Offshore 

Governors’ Forum comprised of the governments of American Samoa, the Northern Mariana Islands, 

Puerto Rico, and the U.S. Virgin Islands. 

Dr. Corbin has served as political advisory to the U.S. Virgin Islands’ Fifth Constitutional Convention, and 

as a member of the U.S. Virgin Islands Political Status Commission. He has lectured extensively an 

governance and political development at Bermuda College, the University of the South Pacific, the 

University of Copenhagen, the University of Puerto Rico, and the University of the West Indies. He is the 

author of two United Nations studies on the participation of non-independent countries in the United 

Nations system, four books, and numerous scholarly articles on political and constitutional advancement. 

Appeared before the U.S. Virgin Islands Committee on January 23, 2023. 

Neil Weare (Testimony on January 23, 2023)

Mr. Weare is a civil rights attorney and non-profit leader committed to achieving equal rights for Americans 

living in U.S. territories. Raised in the U.S. territory of Guam, Neil worked for Guam’s non-voting Delegate 

Madeleine Bordallo prior to attending Yale Law School. In Spring 2020, he taught a Law of Territories 

seminar as a Visiting Lecturer in Law at Yale Law School. Outside of his territorial advocacy, he advises a 

wide range of non-profit organizations as an associate at Loeb & Loeb LLP and was previously an attorney 

at Trister, Ross, Schadler & Gold, PLLC. 

Prior to founding Equally American, Neil was Litigation Counsel and Supreme Court Fellow at 

Constitutional Accountability Center. Neil clerked on the Alaska Supreme Court for Justice Morgan 
10

Christen, now a Judge on the Ninth Circuit. He was also a Thomas Emerson Fellow at David Rosen & 

Associates in New Haven, Connecticut. As a law student, Neil successfully argued CCJEF v. Rell, a 

landmark case before the Connecticut Supreme Court recognizing a right to adequate education for 

Connecticut schoolchildren. His commentary has appeared in the New York Times, the Washington Post, 

CNN.com, Slate.com, and other media outlets. Appeared before the U.S. Virgin Islands Committee on 

January 23, 2023. 

Judith Bourne (Testimony on July 18, 2023)

Ms. Bourne has practiced law in the US Virgin Islands for 46 years. She was one of the lawyers 

for the Save Long Bay Coalition which challenged the claims of the then Danish-owned West 

Indian Company to extensive rights in the harbor of Charlotte Amalie and took that issue to the 

United Nations Decolonization Committee beginning in 1984 and for several years thereafter. 

Those serial presentations were a factor in the Danish owners offering to sell the company to the 

VI Government, which purchase was accomplished by the Farrelly administration. This 

controversy presented her with the opportunity to bring her training at the NYU Law School’s 

Center for International Studies, where she obtained an LL.M. in International Law, to the issues 

of self-determination and political status in the U.S. Virgin Islands and she has continued to be 

actively involved ever since. Appeared before the U.S. Virgin Islands Committee on July 18, 2023.

Dr. Malik Sekou (Testimony on September 21, 2023)

Dr. Sekou is a Political Science Professor at the University of the Virgin Islands. He is a longtime 

professor and department chair at the University of the Virgin Islands in history, political and 

social sciences. He has been elected to the V.I. Board of Education and has writings and 

commentary spanning topics such as law enforcement and the justice system, cost of living in the 

territory, and labor and immigration issues. He was twice a candidate for the V.I. Senate and was 

a longtime legislative analyst and researcher at the V.I. Legislature. Appeared before the U.S. 

Virgin Islands Committee on September 21, 2023. 
11

Policy Brief

Civil Rights in the U.S. Virgin Islands

The Policy of the United States is that the five 

Territories of Puerto Rico, Guam, Northern Mariana 

Islands, American Samoa, and the U.S. Virgin Islands are 

“Unincorporated,” meaning while the residents of these 

Islands are U.S. Citizens, they are not afforded the full 

protections and privileges of the Constitution. 

The most significant findings. For well over one 

hundred years, the development of civil rights law in the 

United States has taken steps to right the wrongs of 

racism, discrimination, and disenfranchisement. The 

U.S. Virgin Islands, as well as the other four territories, 

have been forgotten by Congress, the President, and the 

Supreme Court and remain frozen in a time when U.S. 

Citizens of color and women could not vote and had no 

say in the laws that governed their daily lives. 

This report explores the current political and legal status 

of the U.S. Virgin Islands and the inequality suffered by 

the U.S. Citizens who reside there. It also contains an 

examination of the break in the long tradition of 

expansion and application of the Constitution to the 

territories. 

U.S. Virgin Islands Advisory Committee to the 

United States Commission on Civil Rights

Key Conclusions:

1. Citizens living in the U.S. Virgin 

Islands lack the selfdetermination, and equality 

protections guaranteed by the US 

Constitution that other citizens of 

the United States enjoy. 

2. The international law 

requirements, as mandated by 

United Nations Treaty, requires 

the United States to bring the 

U.S. Virgin Islands to the full 

measure of self-government. 

3. The millions of United States 

citizens living in the Territories 

share the following: None can 

vote for President, none are 

represented by a voting member 

of Congress, none can effectively 

participate in self-determination 

at any level of government, each

has a lower status of citizenship 

compared to citizens living in the 

fifty states.

This work is the product of the U.S. Virgin Islands Advisory Committee to the United States Commission on Civil Rights. The report may rely 

on testimony, studies, and data generated from third parties. This report was reviewed by Commission staff only for legal sufficiency and 

procedural compliance with Commission policies. The views, findings, and recommendations expressed in this report are those of a majority of 

the U.S. Virgin Islands Advisory Committee and do not necessarily represent the views of the Commission, nor do they represent the policies of 

the United States Government. For further information contact: USCCR, Midwest Regional Office – (312) 353-8311 or dbarreras@usccr.gov. 
12

The U.S. Virgin Islands Advisory Commitee to the United States 

Commission on Civil Rights

Territory, Colony, or Possession? Political Status and 

Civil Rights Implications in the U.S. Virgin Islands

The United States Commission on Civil Rights (Commission) appointed the U.S. Virgin Islands 

Advisory Committee on July 22, 2022, pursuant to a request from Congress in the Fiscal Year 2021 

House Appropriations Report.1 This request from Congress, enacted more than 60 years after the 

Civil Rights Act, is indicative of the “forgotten” status of the territories that continue to be 

populated primarily by people of color. The U.S. Virgin Islands Advisory Committee along with 

other recently appointed Territorial Advisory Committees of Puerto Rico, Guam, Northern 

Mariana Islands, and American Samoa, join the 51 Advisory Committees that were created in the 

Civil Rights Act of 1957.2

 These Advisory Committees share the same description of duties, 

objectives, and scope of activities, including the duty to advise the Commission concerning matters 

related to discrimination or a denial of equal protection of the laws under the Constitution and the 

effect of the laws and policies of the Federal government with respect to equal protection of the 

laws.

3

 

Of particular interest to the U.S. Virgin Islands advisory committee is the plenary power of 

Congress as interpreted by the Supreme Court’s jurisprudence over United States citizens 

domiciled in the U.S. Virgin Islands under the Constitution’s Territory Clause.

4 This plenary power 

of Congress has been exercised since the founding of the country to both limit and deny the civil 

rights of certain groups of people who were, and are, lawful citizens or residents of the United 

1 H. Rept. No. 116-455, p. 138 (2021). 2 Civil Rights Act of 1957, Pub. L. No. 85-315. 3 Charter for U.S. Comm. On Civ. Rights State Advisory Comms. § 3. 4 U.S. Const. art. IV § 3 (2). 
13

States. In sum, the plenary power of Congress has been and continues to be used to make legal 

what would otherwise be forbidden by the Constitution. 

Introduction

The United States of America acquired its present territories, and asserted absolute control over 

them, without first seeking the consent of the people inhabiting the lands.5 This has proven to be 

constitutionally problematic. As an initial matter, the concept of self-determination was central to 

the foundation of the country, and by the 1890’s the nation was divided over the idea of imperial 

expansion.6 Moreover, legal scholarship was not clear if the Constitution followed the flag7. When 

Puerto Rico, Guam, and the Philippine Islands were annexed in 1898 the very meaning of the term 

“United States” was called into question, along with what it meant to be a citizen.8

By the time the U.S. Virgin Islands were purchased from Denmark in 1917, the Supreme Court 

had created the groundwork for a territorial system in several cases dealing with Puerto Rico, the 

most important of these cases is Downes v Bidwell.

9 According to the Court, territories acquired 

by the United States fall into two categories: "incorporated" territories, which are "an integral part 

of the United States," full members of "the American family,"10 and likely candidates for eventual 

statehood11; and "unincorporated" territories, which are held merely "appurtenant" to the United 

States, and seen as "foreign . . . in the domestic sense."12

The purchase of the U.S. Virgin Islandsin 191713took the residents of the Islands from membership

in the Danish Empire and replaced it with a lesser status in the United States based on the Supreme 

Court’s doctrine of territorial incorporation14 developed in the Insular Cases. The U.S. Virgin 

5 Treaty of Paris U.S. – Spain, Dec. 10, 1898, 30 Stat 1754. (The United States acquired Puerto Rico and Guam and purchased the Philippines for 

$20 Million), Convention Between the United States and Denmark, ETC., U.S. – Den., Jan. 25, 1917, 39 Stat. 1706, Treaty Series No. 629. (The 

cession of the Danish West Indies to the United States), American Samoa acquired pursuant to a partition agreement with other imperial powers, 

and the Northern Mariana Islands pursuant to trusteeship after WWII sanctioned by the United Nations. 6 See Polster, J., Stages of Engagement: U.S. Theatre and Performance 1898-1949, Routledge, p.25(Statement of Senator George Hoar “This

treaty will make us a vulgar, commonplace empire, controlling subject races and vassal states, in which one class must forever rule and other 

classes must forever obey.”)

7 For a discussion on this concept See Kal Raustiala, Does the Constitution Follow the Flag? The Evolution of Territoriality in American Law, 

Oxford Univ. Press, 2009. 

8 See Christopher C. Langdell, The Status of Our New Territories, 12 Harv. L. Rev. 365, (1899); James B. Thayer, Our New Possessions, 12 Harv. 

L. Rev. 464, (1899); Carman Randolph, Constitutional Aspects of Annexation, 11 Harv. L. Rev. 1, (1899); and Simeon E. Baldwin, The 

Constitutional Questions Incident to the Acquisition and Government by the United States of Island Territory, 12 Harv. L. Rev. 393, (1899). 9 182 US 244 (1901). 10 Id. at 339, 342 (J. White concurring). 11 See Frederick R. Coudert, The Evolution of the Doctrine of Territorial Incorporation, 26 Colum L Rev 823, 834 (1926) (arguing that Justice 

White thought incorporation implied a promise of ultimate statehood).

12 Downes, 182 U.S. at 341-42 (White concurring). 13 Convention Between the United States and Denmark for the Secession of the Danish West Indies, U.S. – Den., Aug. 4, 1916, 39 Stat. 1706 

(1917).

14 Downes v. Bidwell, 182 U.S. 244 (1901).
14

Islands is not considered part of the United States from a constitutional perspective and pursuant 

to these Supreme Court holdings, the U.S. Virgin Islands are considered an unincorporated 

territory15, which means persons born in the U.S. Virgin Islands are not constitutionally entitled to 

citizenship and only portions, as determined exclusively by the United States Congress, of the 

constitution apply to the people and the Islands.16

The U.S. Virgin Islands Advisory Committee undertakes the challenge of providing an overview 

to the Commission on the status of civil rights in the Islands with a sober awareness of the 

complexity of the issues involved. This document provides the necessary case law and broader 

historical and political developments as context critical to explaining how the U.S. Virgin Islands 

are currently organized. There are areas in this report that under normal circumstances would 

require greater discussion, the jurisprudence of the legitimacy (or non-legitimacy) of the Insular 

Cases alone has been explored in scores of law review articles.17 As the inaugural document from 

this committee, the committee’s objective is to provide a baseline of knowledge for the 

Commission to consider in future discussions about the status of civil rights in the U.S. Virgin 

Islands. We have concluded that a meaningful appreciation of the foundational issues of civil rights 

in the U.S. Virgin Islands requires the separation of our perception of what such rights are from 

the historical and present reality of the political and legal status of the U.S. Virgin Islands and its 

citizens. 

As the committee deliberated the topics associated with our mandate, several questions were 

posed: 

1. What is the nature of a civil right, and where does that right emanate from? 

2. Do civil rights follow the person, or do they attach to the place? 

3. Is citizenship the same thing as civil rights?

4. Who has the primary responsibility over civil rights? Of citizenship? The Federal 

government or the States? 

15 Smith v. Gov. of the Virgin Islands, 375 F.2d 714 (3d Cir. 1967). 16 U.S. Dept. of the Interior, Definitions of Insular Area Political Organizations, 

https://www.doi.gov/oia/islands/politicatypes#:~:text=An%20unincorporated%20United%20States%20insular,Kingman%20Reef%2C%20Midw

ay%20Atoll%2C%20the . 17 For a discussion on the Court decisions in the Insular Cases see: Christina Ponsa-Kraus, The Insular Cases Run Amok: Against Constitutional 

Exceptionalism in the Territories, The Yale Law Journal, 131:2449 (2022). 
15

5. Does a U.S. citizen, living in the Virgin Islands, have the same civil rights as a U.S. citizen 

living in any of the 50 states? 

6. Does a U.S. Citizen, living in the Virgin Islands, have the same civil rights as a U.S. Citizen 

living in a foreign country? 

With no committee history to reference, the U.S. Virgin Islands committee relied upon U.S. 

Commission on Civil Rights institutional history to illuminate its path on this process. The 

committee referenced the inaugural report18 of the United States Commission on Civil Rights for 

guidance on how to evaluate the citizen and the civil rights constructs. 

The Commission on Civil Rights

The United States Commission on Civil Rights (Commission) was created by the Civil Rights Act 

of 1957.19 When it was signed into law on September 9, 1957, The Civil Rights Act was the first 

piece of civil rights legislation since Reconstruction. Prior to the Commission on Civil Rights, 

there was no agency in the Federal government with authority to investigate general allegations of 

deprivation of civil rights, including the right to vote.20 

It is important to consider the circumstances that led to the passage of the Civil Rights Act of 1957, 

and the actions taken by the Commission to accomplish their initial charge, because as this record 

will show, many of those conditions exist in the United States Virgin Islands today. 

The Commission was established just three years after the landmark Brown v. Board of Education21

ruling by the Supreme Court which effectively held racial segregation as a violation of the 14th

Amendment’s Equal Protection Clause.22 The Court repudiated their prior holding in Plessy v. 

Ferguson23and struck down the legal doctrine of separate but equal. 

Due to the highly charged conflicts in America around race and civil rights, the President and 

Congress were looking to the Commission on Civil Rights to provide “knowledge and 

understanding of all of the complex problems involved.”24 

18 U.S. Comm on Civ. Rts., Report of the U.S. Commission on Civil Rights (1959). 19 Pub. L. No. 85-315, 85th Cong., Sept. 9, 1957. 20 Statement of the Attorney General on the Proposed Civil Rights Legislation, before the Subcommittee on Constitutional Rights of the Senate 

Judiciary Committee, pp. 14-15, (Feb. 14, 1957). 21 347 U.S. 483 (1954). 22 U.S. Const. amend. XIV, § 1. 23 163 U.S. 537 (1896). 24 Ibid.
16

For context, 25

1. Large segments of racial and ethnic minorities were disenfranchised despite the protections 

of the 14th and 15th Amendments to the Constitution. 

2. Black Americans could not travel the country freely. 

3. Black Americans generally lacked self-determination at the local, state and federal levels. 

4. American citizenship was on a lesser level for Blacks than it was for Whites in terms of 

educational and employment opportunities. 

5. Laws were in place to safeguard equal treatment before the law, but systematic indifference 

meant most Black citizens did not receive equal opportunities.

The Commission was instructed to submit to the President and Congress a comprehensive report 

of its activities, findings, and recommendations. Sixty-four years ago, on September 9, 1959, the 

Commission issued its report to the President and Congress. The report was divided into five parts 

to address what the Commission felt were the exigent problems facing the country. Because of the 

complexity of the subject matter, which involved subtle problems of Constitutional interpretation 

along with delicate questions of federal-state relationships, the Commission began their study with 

a background on Civil Rights. The Commission posed two key questions: 

1. What are civil rights in the United States?26

2. What does it mean to be a citizen of the United States?27

The Commission endeavored to answer these questions, in part, by reviewing “the history of 

America and the spirit of its laws in order to trace, and try to illuminate, the fundamental 

constitutional principles involved in civil rights.”28 

“The conflict between those who would extend the republican principle to all men and those who 

would limit it to some men or who would delay its application has produced a tension in the minds 

and hearts of Americans and in American laws that is still with us.”29

25 Report, supra note 18. (It is beyond the scope of this report to catalog the history of civil rights in the United States. The reader is directed to 

the Report by the Commission on Civil Rights which summarizes that history. 26 Report of the U.S. Commission on Civil Rights, Part I, page 1 (1959). 27 Ibid.

28 Report of the United States Commission on Civil Rights, 8 (1959). 29 Ibid. at 3. 
17

The U.S. Virgin Islands Advisory Committee

The United States Virgin Islands of St. Thomas, St. Croix, and St. John are located east of Puerto 

Rico, between the Caribbean Sea and the North Atlantic Ocean.30

Figure 1: U.S. Virgin Islands: Sourced from CIA World Factbook

The population of the U.S. Virgin Islands is 104, 917 (2023 est.).31 Eighty-one percent of the 

population identifies as Black or African American.

32 Thirteen percent identify as white. The 

Islands, and their political and legal concerns, have largely been dismissed because they are a small 

and “remote.”33Overall, however, the combined population of the U.S. territories, who share 

30 The World Factbook 2021. Washington, DC: Central Intelligence Agency, 2021. https://www.cia.gov/the-world-factbook/countries/virginislands/#geography . 31 Ibid. 32U.S. Census Bureau, U.S. Census 2020. 

https://data.census.gov/table/DECENNIALDPVI2020.DP1?g=040XX00US78&d=DECIA%20U.S.%20Virgin%20Islands%20Demographic%20

Profile&tid=DECENNIALDPVI2020.DP1 33 Daniel Immerwahr, The Greater United States: Territory and Empire in U.S. History, 40 Diplomatic History 373, (2016).
18

similar civil rights concerns with the Virgin Islanders, is nearly 4 million people.34 That is a greater 

population than the five least-populated U.S. states combined.35 Table 1 illustrates the total 

population of the five least-populated states compared to the combined population of the 

Territories. 

Table 1: Popula�on Comparison Between Territories and States

Source: Congressional Research Service, Admission of States to the Union: A Historical Reference Guide, R47747, Dec. 5, 2023.

What should be noted about the above comparison is that with the exception of American Samoa, 

inhabitants of the Territories are Citizens of the United States.36These citizens, unlike the citizens 

residing in the five least populated states, do not have an equal status in the United States. In fact, 

in the aggregate, the population of the territories is greater than 24 individual states.37

34 U.S. Census, 2020 Population. 35 Ibid., See Also Neal Weare, testimony before the U.S. Virgin Islands Advisory Committee, briefing, virtual, Jan. 23, 2023, p.7 (hereafter cited 

as Jan. 23 Briefing). (Making the observation that “Those same states are represented by 10 Senators, 5 members of the House, and 15 electors 

for Pres.”).

36 Natives of American Samoa are considered United States Nationals. 37 Ibid.

U.S. Territories Population 5 Least Populated States

American Samoa 49,710 Wyoming 577, 719

N. Mariana Islands 51,295 Vermont 643,503

Guam 169,330 Alaska 736,081

USVI 104, 917 North Dakota 779, 702

Puerto Rico 3,285,874 South Dakota 887,770

TOTAL 3,661,126 TOTAL 3,624,775
19

Table 2: Population, Representation, Federal Electors

State Former 

Territory

Statehood 

Granted

Population

(2023) 

U.S. 

Reps

U.S. 

Senators

Federal 

Electors

1. Alaska Y 1959 736,081 1 2 3

2. Arkansas Y 1836 3,013,756 4 2 6

3. Connecticut N Original 13 3,608,298 5 2 7

4. Delaware N Original 13 990,837 1 2 3

5. Dist of Columbia N N 678,972 0 0 3

6. Hawaii Y 1959 1,460,137 2 2 4

7. Idaho Y 1890 1,841,377 2 2 4

8. Iowa Y 1846 3,192,406 4 2 6

9. Kansas Y 1861 2,940,865 4 2 6

10. Maine N 1820 1,363,582 2 2 4

11. Mississippi Y 1817 2,963,914 4 2 6

12. Montana Y 1889 1,085,407 4 2 6

13. Nebraska Y 1867 1,963,333 3 2 5

14. Nevada Y 1864 3,108,462 4 2 6

15. New Hampshire N Original 13 1,379,089 2 2 4

16. New Mexico Y 1912 2,120,220 3 2 5

17. North Dakota Y 1889 779,702 1 2 3

18. Oklahoma* Y 1907 3,963,516 5 2 7

19. Oregon* Y 1859 4,241,500 6 2 8

20. Rhode Island N Original 13 1,098,163 2 2 4

21. South Dakota Y 1889 887,770 1 2 3

22. Utah Y 1896 3,275,252 4 2 6

23. Vermont N 1791 643,503 1 3 3

24. West Virginia N 1863 1,795,045 2 2 4

25. Wyoming Y 1890 577,719 1 2 3

Territories 

Combined 

Y N 3,661,126 0 0 0

*The District of Columbia has a population of 678,972 and is not represented by a voting member in Congress. That population, 

added to the territories would include Oregon and Oklahoma on this list. Source: Congressional Research Service, Admission of 

States to the Union: A Historical Reference Guide, R47747, Dec. 5, 2023.
20

Each of the twenty-four states listed in Table 2 are represented by at least three members of 

Congress (two Senators and at least one Representative). Each state has at least three electors in 

the Electoral College. Conversely, the 3.6 million people living in the Territories have no voting 

members of Congress, and do not vote in the national election for President. This lack of 

representation and limitation on participation in the political process directly affects the civil rights 

of the citizens living in the Territories. The citizens of the Territories have no ability to influence 

the laws that regulate their lives. Imagine telling the citizens of Kansas or Iowa that they can no 

longer vote for President. What would be the fallout of mandating to the state legislatures of the 

50 states that any proposed legislation must be approved by Congress? 

Just as the U.S. Commission on Civil Rights was relied upon in 1957 to look into the soul of the 

nation to ask and answer hard questions about race relations and civil rights, this committee takes 

on a similar responsibility. The formation of this committee to report on the status of civil rights 

will provide the Commission with unique perspectives of the U.S. Virgin Islands as well as the 

problems shared by all five territories over the paradox of the American Empire which includes 

21st Century colonialism. The paradoxical experiences shared by the territories were born with the 

“conception of empire”, but the policy of the federal government has consistently denied for 

another reason: “our conception of the United States.”38

This report will identify a consistent pattern in the annexation of territory by the United States that 

was broken in 1898, and again in the purchase of the Virgin Islands in 1917, for reasons, based on 

a set of racist norms regarding the innate inferiority of the people that occupy those territories. The 

Supreme Court rulings in the Insular Cases, which paved the way for modern day colonialism in 

the United States, defy sound legal reasoning and are race-based and remain discriminatory.39 The 

report will also show the historic struggle for equality among men (equal protection) by people of 

color, women, those with disabilities, and others throughout the history of this nation, persists and 

affects every citizen in the U.S. Virgin Islands today.

This report will show that the status of civil rights in the U.S. Virgin Islands is completely 

dependent on Congress, the same type of colonial relationship that was the impetus of the 

American Revolution. The record will reflect leading academic and legal thought that concludes 

38 Daniel Immerwahr, The Greater United States: Territory and Empire in U.S. History, 40 Diplomatic History 373, (2016). 39 U.S. v. Vaello-Madero, 596 U.S. ___ (2022). Justice Gorsuch Concurrence, p.5. “The Insular Cases have no foundation in the Constitution and 

rest instead on racial stereotypes. They deserve no place in our law.”
21

the U.S. Virgin Islands, as an unincorporated territory, and the American citizens who live there, 

do not have civil rights based on a supreme constitution, but are instead governed by privileges 

granted by Congress. 

Like the Commission in 1957, the U.S. Virgin Islands Advisory Committee must today endeavor 

to sift through the complexity of this subject matter. This inaugural Advisory Committee from the 

U.S. Virgin Islands believes the best strategy for its initial study is to follow the learned example 

of the Commission. Our duty to advise the Commission on matters in the U.S. Virgin Islands must 

begin with comparable questions that were posed by the Commission in 1959, 

1. What are civil rights in the United States Virgin Islands? 

2. What does it mean to be a citizen of the United States who resides in the U.S. Virgin 

Islands? 

The Purpose and Methodology of This Study

The committee began its study with a sightly epistemic question: What is the nature of a civil 

right, and where does that right emanate from? These guiding questions will lead to the source of 

governmental authority over the people and the territory and raise more questions about the 

legitimacy of that authority. The purpose of the study is to inform the discussion about civil rights 

in the U.S. Virgin Islands by delineating the rights afforded to the citizens of the U.S. Virgin Islands 

in contrast to those granted to the citizens of the fifty states.

This committee will engage in a study in several parts, beginning with this report which examines 

the current political and legal status of the Islands. The Committee will show the Commission that 

the jurisprudence of the United States which initially included legalized slavery, and sanctioned 

discrimination, disenfranchisement, and exclusion of classes of people; evolved through a body of 

civil rights law intended to right the wrongs of the past. Much progress has been made, but the 

Commission will see the people of the U.S. Virgin Islands are trapped in the vestiges of the worst 

of the civil rights past.
22

Part One: The Political and Legal Status of the U.S. 

Virgin Islands

Chapter One: Civil Rights in the U.S. Virgin Islands

I. Civil Rights as Defined by the U.S. Commission on Civil Rights40

In 1959, the majority of the Commissioners defined civil rights as “the rights of citizens, though 

under the Constitution many of them extend to all persons”41 and identified the right to vote and 

equal protection of the laws as being the immediate concerns of their mandate from Congress.42

They added that these rights are at the very foundation of the Republic and “they are implied in 

the original Constitution itself, in its very first words and in its provisions for representative 

government and the rule of law.”43

A separate group of three Commissioners, in an “Exception Statement”, indicated that “the 

principle of equality was not made part of our fundamental law”44based on the Constitution, and 

posited that “Civil Rights” arose after the adoption of the 14th Amendment45 in which “individual 

rights against state action with supplementary enforcement powers granted to the Federal 

Government.”46 This group of Commissioners said “the right of the ballot is the best 

illustration”47of a civil right.

Although the two groups of Commissioners did not agree on an exact definition of Civil Rights, 

each of their working definitions referenced the same authority: the Constitution of the United 

States of America, as amended.

40 There are many definitions of Civil Rights. The Committee has chosen to identify and work with the definitions used by the Commission in 

1959 for continuity and clarity. 41 Report of the Commission, Supra note 18, at 1. 42 Ibid. 43 Ibid. 44 Ibid. 2, at Exception note 3. 45 U.S. Const. amend. XIV, § 1. 46 Report of the Commission, Supra note 18, at 2, Exception note 7. 47 Ibid.
23

II. The Supremacy Clause and the Applica�on of the Cons�tu�on to the U.S. Virgin 

Islands

The supremacy clause48 of the Constitution is commonly interpreted to mean that the Constitution 

is the supreme Law of the Land.49 If the Constitution, as amended, is the source of Civil Rights in 

the United States of America, then the rights of citizens emanate from that document. The analysis 

of civil rights in the U.S. Virgin Islands therefore, becomes extraordinarily complex because unlike 

the citizens living in the 50 states (where the Constitution in full is considered the supreme law of 

the land), the citizens living in the territories, including the U.S. Virgin Islands, are governed 

under the plenary power of Congress.

50 This means that only the most fundamental

constitutional rights extend to the territory of the Virgin Islands unless expressly granted by 

Congress.51

A. Sec�ons of the Cons�tu�on that Apply to the Virgin Islands

The Revised Organic Act of 1954 Congress identified the following provisions of and amendments 

to the Constitution of the United States that were extended to the U.S. Virgin Islands52: 

1. Article I, Section 9, clauses 2 and 3. 

a. Section 9, clause 2: The privilege of the Writ of Habeas Corpus shall not be suspended 

unless in Cases of Rebellion or Invasion the public safety may require it. 

b. Section 9, clause 3: No Bill of Attainder or ex post facto law shall be passed.

2. Article IV, Section 1 and Section 2, clause 1. 

a. Section 1: Full Faith and Credit shall be given in each State to the public Acts, Records, 

and judicial Proceedings of every other State. 

b. Section 2, clause 1: The Citizens of each State shall be entitled to all Privileges and 

Immunities of Citizens in the several States.

3. Article VI, clause 3. 

a. Clause 3: Oath or Affirmation to support the Constitution. 

4. Amendments I to IX, inclusive. 

5. Amendment XIII. 

48 U.S. Const. art. VI, § 2 49 McColloch v. Maryland, 17 U.S. 316 (1819). 50 U.S. Const. art. IV, § 3, cl. 2. (“The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the 

Territory or other Property belonging to the United States.”) 51 Terr. Court of the Virgin Islands v. Richards, 673 F. Supp. 152 (1987). 52 48 U.S.C. 12 (1954). 
24

6. Amendment XIV, second sentence of Section 1. 

a. Section 1, second sentence: No State shall make or enforce any law which shall abridge 

the privileges or immunities of citizens of the United States, nor shall any State deprive 

any person of life, liberty, or property, without due process of law; nor deny to any 

person within its jurisdiction the equal protection of the laws. 

7. Amendment XV. 

8. Amendment XIX. 

9. The Organic Act provided “All offenses against the laws of the United States and the Virgin

Islands which are prosecuted in the district court may be had by indictment by grand jury 

or by information; offenses against the Virgin Islands which are prosecuted in the district 

court shall continue to be prosecuted by information.”53

B. The Supremacy Clause...Part II

In her testimony to the U.S. Virgin Islands Committee, Attorney Judith Bourne proffered an 

opinion on an overlooked aspect of the Supreme law of the land. She told the committee that the 

complete Supremacy Clause reads: 

This Constitution, and the laws of the United States which shall be made in pursuance 

thereof; and all Treaties made, or which shall be made, under the Authority of the 

United States shall be the supreme law of the land...54

This means, in other words, that the treaties made under authority of the United States have an 

equal status to the Constitution.55 This fact has often been rendered meaningless by the federal 

courts that ignore international law in favor of U.S. jurisprudence. The Supreme Court has 

created judicial doctrines to self-impose limitations on their ability to enforce international law, 

such as declaring some treaty provisions as “non-self-executing,”56 evoking the “last-in-time” 

rule,57 declaring an issue to be a “political question,”58 and deferring to an “act of 

53 Revised Organic Act of 1954, 68 Stat. 497. 54 Supra, note 47. 55 Judith Bourne, testimony before the U.S. Virgin Islands Advisory Committee, briefing, virtual, July 20, 2023, transcript, p. 3. (hereafter cited as 

July transcript).

56 See Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1829) (declaring that the treaty in question was in the nature of a contract to perform a 

particular act and therefore required legislation to be enforceable in court.)

57 See Whitney v. Robertson, 124 U.S. 190 (1888) (enforcing a later-enacted law exempting Hawaiian sugar from duties despite its conflict with 

an earlier treaty with the Dominican Republic). 58 See Baker v. Carr, 369 U.S. 186, 210-13 (1962) (finding judicial deference to the “political branches” of government appropriate with respect 

to certain matters of foreign policy).
25

state.”59Some would also include in this assessment the refusal of the federal government to 

allow itself to be held accountable for its errors under grounds of “sovereign immunity.”60

These self-imposed limitations, external to the Constitution, are especially relevant to the U.S. 

Virgin Islands, as will be discussed below. 

1. Interna�onal Law

The United States was one of the earliest proponents of the basic principle that state sovereignty 

cannot override basic human rights or humanitarian law.61 As an example, the justification of the 

criminal trials after World War II was advocated by the United States on the grounds that the 

Axis leaders violated established international law “even when their conduct was in compliance 

with, or mandated by, domestic law.”62By not evoking judicial deference to international law, the 

United States in effect violates Article 27 of the Vienna Convention on the Law of Treaties, 

namely that a “party may not invoke the provisions of its internal law as justification for its 

failure to perform a treaty.”63

2. Trea�es

The foregoing discussion on the supremacy clause and international law is not an exercise of legal 

analysis designed to incriminate the federal government as a bad actor. The facts are, however, that 

the United States is a signatory nation of the United Nations Charter64, the International Covenant 

on Civil and Political Rights65, and the Organization of American States Charter66 among others.

These treaties contain provisions that call for self-determination of non-self-governing peoples67, 

including the freedom to pursue their economic development,68 and identify representative 

democracy as indispensable.69

59 See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 400-01, 416-20 (1964); Underhill v. Hernandez, 168 U.S. 250, 252-54 (1897). 60 See United States v. Clarke, 33 U.S. (8 Pet.) 436, 444 (1834) (the first case recognizing sovereign immunity of the federal government); See 

also Koehler v. United States, 155 F. 3d 262, 267 (5th Cir. 1998) and Brown v. United States, 141 F. 3d 800, 803 (8th Cir. 1998) (both cases holding 

that unless the federal government explicitly waives immunity from a particular kind of suit, courts lack subject matter jurisdiction). 61 See Richard Falk, Human Rights and State Sovereignty, 11-12, P.195 (1981) and Geoffrey Robertson, Crimes Against Humanity: The Struggle

for Global Justice 14-15, 24 (1999). 62 See Bradley Smith, The Road to Nuremberg 4 (1981) (“after we allow for the spirit of the age as well as for the legal background...the central 

fact is that the Nuremberg trial system was created almost exclusively in Washington by a group of American government officials.”) 63 Vienna Convention on the Law of Treaties, May 23, 1969, art. 27, 1155 U.N.T.S. 331, 339 (entered into force Jan. 27, 1980). Although not a 

signatory of the Convention, the United States recognizes the treaty as codifying the customary law of agreements between states. 64 United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI. 65 International Covenant on Civil and Political Rights, Dec. 16, 1966, GA Resolution 2200A (XXI), TIAS 92-908. 66 Charter of the Organization of American States, February 27, 1967, 2 UST 2394; 119 UNTS 3. 67 Supra note 64. 68 Ibid., art. 1(1). 69 Supra note 65.
26

Dr. Carlyle Corbin, United Nations expert on self-determination, told the U.S. Virgin Islands

committee that the United States placed the U.S. Virgin Islands on the United Nations list of NonSelf-Governing territories in 1946.70 The mandate, he said, under Article 73B of the UN Charter 

is to bring the territory (U.S. Virgin Islands) to the full measure of self-government.

71

III. Ci�zenship and Civil Rights in the U.S. Virgin Islands

A. Ci�zenship

Citizen of a State and Citizen of the United States. Citizenship in the U.S. Virgin Islands is on a 

lesser footing than that of similarly situated citizens of the 50 states.

1. The Constitution of the United States uses the term Citizen in several articles, but the term

was not defined until the 14th Amendment, whereby “All persons born or naturalized in the 

United States, and subject to the jurisdiction thereof, are citizens of the United States...”.

72

The U.S. Virgin Islands is not considered a part of the United States for the purposes of the 

14th Amendment, therefore the people born in the U.S. Virgin Islands are not eligible for 

birthright citizenship under the Constitution.73

2. Citizenship was conferred upon the residents of the U.S. Virgin Islands in 1927 through the 

Act Conferring United States Citizenship on the Virgin Islands.

74 This was followed by an 

Act of June 28, 1932,

75 and by the Nationality Act of 194076, and finally the Immigration 

and Nationality Act of 1952 which provided that “anyone born after February 25, 1927, in 

the Virgin Islands acquired nationality and statutory citizenship at birth.”77

3. There is an important distinction between Constitutional citizenship and statutory 

citizenship. The Supreme Court held in Afroyim v. Rusk that Congress has no general power 

70 Carlyle Corbin, testimony before the U.S. Virgin Islands Advisory Committee, virtual, Jan. 23, 2023, transcript, p.12 (hereafter cited as Jan. 23 

Briefing).

71 Ibid. 72 Supra, note 36. 73 Citizenship is derived either from the Fourteenth Amendment to the Constitution or from a specific statute that confers citizenship on the 

inhabitants of an area that, although not a state, is under the sovereignty of the United States. Such legislation has been enacted for the Virgin 

Islands (8 U.S.C. § 1406). 74 44 Stat. 1234 (1927). 75 47 Stat. 336 (1932). 76 54 Stat. 1137 (1940) 77 8 U.S.C. § 1406. 
27

to revoke American citizenship from natural and naturalized citizens without consent.78

Citizenship in the Territories, including the U.S. Virgin Islands, is awarded by statute79 and 

is potentially revocable. 

B. Self – Determina�on

Self-determination is guaranteed to the citizens of the 50 states through the Constitution: 

1. The United States shall guarantee to every state in this Union a Republican form of 

government.80

2. All legislative powers granted under the Constitution are vested in a Congress, composed 

of two chambers.

81 A House of Representatives, apportioned based on population and 

elected by the people of the several states82; and a Senate, composed of two Senators 

from each state elected by the people of the several states.

83

3. The executive power granted under the Constitution is vested in a President of the United 

States of America,

84elected by Electors, equal to the whole number of Senators and 

Representatives to which the state may be entitled in the Congress.

85 The Electors are 

appointed by the legislatures of the several states, who are directly elected by the people. 

4. The Judicial power granted under the Constitution is vested in a Supreme Court, and 

inferior courts established by Congress.86 Judges hold their offices under Good 

Behavior87and are appointed by the President with the advice and consent of the Senate. 

5. The powers not delegated to the United States, nor prohibited by it to the states, are 

reserved to the States respectively, or to the people.88

Additionally, at the time of the drafting of the Constitution in 1787, each of the individual member 

states of the Confederation had their own Constitution under a republican form of government. 

The legitimacy of the government is that its power is “extend[ed] to certain enumerated objects 

78 387 U.S. 253 (1967) 79 The Immigration and Naturalization Act of 1952, 8 U.S.C. § 1402 (2000). 80 U.S. Const. art. IV § 4. 81 Ibid. art. I. § 1. 82 Ibid. art. I § 2, cl. 1. 83 Ibid. art. I § 3, cl. 1. 84 Ibid. art. II § 1. 85 Ibid. § 2. 86 Ibid. art. III § 1. 87 Ibid. § 2, cl.1. 88 U.S. Const. amend. X.
28

only and leaves to the several states a residuary and inviolable sovereignty over all other objects.”89

James Madison, the architect of the Constitution, made the distinction in Federalist 39 in support 

of the ratification of a federal government, that under a national legislature, “with indefinite 

supremacy over all persons and things”, “all local authority would be subordinate to the supreme, 

and may be controlled, directed, or abolished by it at pleasure.”90

The Constitution was meant to create a tiered system of government, deferring to state and 

municipal governments in their respective spheres, but supreme where specifically enumerated in 

the Constitution itself. The United States Virgin Islands has existed for over 106 years in a state 

worse than the “national legislature” warned against by Madison. The people of the Virgin Islands 

are subjects of the Congress, which by virtue of the Supreme Court’s interpretation of the Territory 

Clause of the Constitution, has indefinite supremacy over all persons and things in the U.S. Virgin 

Islands, and all local authority is subordinate to the Congress and may be controlled, directed, or 

abolished at its pleasure. 

In the case of the U.S. Virgin Islands, the people do not even have a vote in the election of the 

national legislature, nor do they vote for the executive. The U.S. Citizens residing in the Islands 

have no self-determination because they do not have a say in the supreme bodies of government.

Any privilege or immunity is subject to the favor of Congress. This reality represents the worstcase scenario as imagined by James Madison in 1787. 

C. Vo�ng

The Constitution left voter qualification to the States91, a key qualification was property 

ownership, and it is estimated that only between 10 and 20 percent of the total population qualified 

to vote in 1787.

92 Between disenfranchised women, native Americans, non-English speakers, 

paupers, vagrants, Catholics, Jews, those legally disqualified, citizens between the ages of 18 and 

21, and nearly 700,000 enslaved people93, the vast majority of Americans were left out of the 

“consent of the governed” equation. 

89 James Madison, Federalist No. 39, The Conformity of the Plan to Republican Principles, p.293. 90 Ibid., emphasis added. 91 U.S. Const. art. II § 2, cl. 2. 92 Library of Congress, Elections, The Founders, and the Vote. https://www.loc.gov/classroom-materials/elections/right-to-vote/the-founders-andthe-vote/ . 93 U.S. Census Bureau, 1850 Census Compendium of the 7th Census, p.82. 

https://www2.census.gov/library/publications/decennial/1850/1850c/1850c-04.pdf .
29

Leaving the states with control over elections and most other civil rights led to abuses of power. 

By the mid 1800’s, the Civil War, and the 13th Amendment94 ended slavery, the 14th Amendment95

secured civil rights from state aggression, and the 15th Amendment96 made it the law of the land 

that citizens will not be denied the right to vote based on race, color, or previous condition of 

servitude. The history of reconstruction after the Civil War would be a report in itself, but it is 

important to note that at the end of reconstruction in 1876, Southern states passed laws and adopted 

state-constitutional amendments whose purpose and effect was to disenfranchise African American 

voters and to impose a rigid system of racial segregation known as Jim Crow, and Black Americans 

were denied the ballot through intimidation, violence, poll taxes, literacy tests, good-character 

tests, grandfather clauses, whites-only primaries, and outright fraud committed by white election 

officials.97

Despite the Fifteenth Amendment, millions of American citizens were still unable to vote. 

Congress therefore enacted further legal protections like the Civil Rights Act of 1875, which were 

ultimately nullified by the Supreme Court.98 It took Constitutional amendments to grant women 

the right to vote,99 and to eliminate Poll Taxes.

100 To address the pervasive racist methods to 

disenfranchise voters, Congress passed the Civil Rights Act of 1964101 and the Voting Rights Act 

of 1965102. The Voting Rights Act introduced nationwide protections of the right to vote, requiring

jurisdictions with a history of voter discrimination to obtain prior approval from a federal court of 

any change to their electoral laws or procedures. 

The struggle to end voter discrimination appeared to be gaining ground until the Supreme Court 

gutted the law in Shelby County v. Holder in 2013. The Court invalidated the preclearance 

requirement, thus preventing the federal government from blocking discriminatory state election 

laws before they were enacted. In the immediate five years after the Shelby decision, 23 states

introduced electoral laws that included voter ID laws, onerous restrictions on voter registration; 

the closure or relocation of polling stations that had served predominantly minority voters (with 

94 U.S. Const. amend. XIII, §1. 95 U.S. Const. amend. XIV, §1. 96 U.S. Const. amend. XV, §1. 97 See generally, United States Commission on Civil Rights, Report of the United States Commission on Civil Rights (1959), Part II, Voting. 98 The Civil Rights Cases, 109 U.S. 3 (1883). 99 U.S. Const. amend. XIX. 100 U.S. Const. amend. XXIV. 101 Pub. L. No. 88-352 (78 Stat. 241) 1964. 102 Pub. L. No. 89-110 (79 Stat. 437) 1965.
30

the effect of making voters travel longer distances or to wait in long lines to cast a ballot), the 

elimination or reduction of early voting periods, burdensome requirements for obtaining or 

submitting absentee ballots, the elimination or reduction of early voting periods, restrictions or 

outright bans on voter registration drives, the elimination of same-day voter registration, and the 

permanent disenfranchisement of convicted felons.103

There has always been a movement to secure the franchise in the Virgin Islands.104 To grant the 

right to vote would require a Constitutional Amendment like the Amendment granting the District 

of Columbia residents the right to vote in federal elections,105 or by an Act of Congress. Based on 

the history of voter oppression against minority voters in the United States, it is not expected that 

a highly politicized and polarized Congress will be taking this matter up anytime soon.

D. Representa�on

The United States Virgin Islands are an Unincorporated Territory of the United States of America, 

and while the Organic Act of 1954106 provided a “detailed frame of government for the Islands”, 

Congress “made it clear” that this “was not to be taken as an indication that it had destined the 

territory for statehood.”107Absent the grant of statehood, the federal system of government does 

not allow for representation in Congress nor a vote for the presidency. 

E. Equal Access to Government Programs

The Committee concedes that there is a debate whether access to Government assistance 

programs is a Constitutional protection. Issues of due process, equal access, and freedom from 

discrimination are civil rights protections, however most allotments for government programs are 

funded through Congressional measures. As noted above, the US Virgin Islands is at a supreme 

disadvantage in securing its share of Government programs since it is not represented by a voting 

member in Congress. 

As a result, Americans who live in U.S. territories lack both the political safeguards that 

constitutional law associates with the federalism of the American system and the 

fundamental rights jurisprudence that constitutional law provides for “discrete and 

insular minorities.” By placing territories outside the default arrangement of American 

103 See U. S. Comm. on Civil Rights, Assessment of Minority Voting Rights Access in the United States, Ch. 3, pp. 83-193. Annual Statutory 

Report, 2018.

104 Donald Hoover, Foreign Affairs, The Virgin Islands Under American Rule, Vol.4, No 3, 1926. P.3. 105 U.S. Const. amend. XXIII. 106 48 U.S.C. 12 (1954). 107 Smith v. Gov. of the Virgin Islands, 375 F. 2d 714 (3rd Cir. 1967).
31

public law, the federal government has built a dilapidated welfare state for Americans 

who happen to be territorial residents.108

Neil Weare told the Committee that there are impacts on veterans and others who have served the 

country when it comes to healthcare benefits and other programs because of the disparity in 

government spending.109 Most Territories receive block grants instead of participating in SNAP 

(Supplemental Nutrition Assistance Program), like all other Americans.110 Medicaid is also 

funded by block grant in the Territories, unlike the rest of the country where funds are distributed 

as needed.111 The major concern with block grants, aside from being funded at a lesser rate than 

what is provided to other Americans, is the lack of ability to respond quickly during an 

emergency, such as with a hurricane. 

In sum, residents of the U.S. Virgin Islands do not qualify for SSI based solely on their location, 

and are provided with less healthcare and nutrition assistance based on a doctrine of Territorial 

Unincorporation112 based on racist norms. 

F. The Administra�on of Jus�ce

The Supreme Court has deemed trial by jury in all criminal prosecutions as a remedial right which 

is not among the fundamental rights which Congress must secure to the inhabitants of the Virgin 

Islands113; however, Congress provided the right to a jury trial in criminal cases in the Revised 

Organic Act of 1954.

114 As with other aspects of Constitutional protections, the right to a jury trial

in the U.S. Virgin Islands is at the prerogative of Congress. 

G. Diversity Jurisdic�on

The U.S. Constitution extends the judicial power of the United States to controversies “between 

citizens of different states.”115An early opinion of the Supreme Court held that “the citizens of the 

District of Columbia were not citizens of any state within the meaning of the Judiciary Act of 

108 Hammond, Territorial Exceptionalism and the American Welfare State, Michigan Law Review, 119:8 (2021). 109 Weare, Jan. 23, 2023, briefing, p. 7. 110 Supra note 108, at 1671. 111 Ibid. at 1672. 112 See Infra note 196. 113 Caron v. First Pa. Bank, 16 V.I. 169(V.I. Terr. Ct. 1979). (The Seventh Amendment of the Constitution does not apply per se to the Virgin 

Islands and is applicable only by statute.) See also, Gov. v. Bodle, 427 F.2d 532 (3rd Cir. 1970). 114 Pub. L. No. 517 – 558 (1954). 115 U.S. Const. art. III, § 2.
32

1789116 for purposes of invoking diversity jurisdiction.”117That ruling essentially blocked 

territorial citizens from bringing diversity suits in federal court.118 The Court faced the issue again 

in 1949, and while it did not overturn the precedent set in 1805, it upheld a recently enacted 

statue119 that extended the jurisdiction of the district courts to civil actions between citizens of 

different states or citizens of the District of Columbia or Territories. 

The legal issues in this ruling stem from Congress’ authority under Article I of the Constitution

and what some viewed as exceeding Congress’ authority under Article III of the Constitution. The 

relevance here is this is another example of the citizens of the U.S. Virgin Islands being classified 

as belonging to a State, but only when it is convenient for Congress. 

H. Economic Concerns

In a 1993 case before the Supreme Court, the Territorial Clause was held to limit the authority of 

the United States Virgin Islands to regulate commerce. The Court reasoned “Congress has 

comprehensive powers to regulate territories under the Territorial Clause...and that Congress’ 

Commerce Clause powers are implicit in that clause. If the Virgin Islands were not subject to the 

dormant aspect of the Commerce Clause and could therefore pass laws that would interfere with 

interstate trade, then an unincorporated territory would have more power over commerce than the 

states possess.”120

An attorney, familiar with the decolonization effort and intimate with Court rulings on matters 

involving the territories shared this with the committee,

Congress placed the USVI outside the US Customs Zone and created a Customs Zone 

solely for the USVI. Not only does this have economic implications (some beneficial, 

some harmful), it denies US citizens domiciled in the USVI the right to travel freely 

between States. Those departing from any port in the USVI must clear immigration 

and customs to leave. This is not a requirement to depart Puerto Rico as it is not outside 

the customs territory of the US.121 Further, importations into all other Territories, except 

the USVI, are not governed by the Tariff Act of 1930 and are under the customs 

116 1 Stat. 73 (1789). 117 James Pfander, The Tidewater Problem: Article III and Constitutional Change, 79 Notre Dame L. Rev. 1925, 1926 (2004), See Hepburn v. 

Ellzey, 6 U.S. (2 Cranch) 445 (1805). 118 Ellzey, 6 U.S. (2 Cranch), at 450. 119 28 U.S.C. § 1332. 120 JDS Realty Corp. v. Government of the Virgin Islands, 824 F. 2d 256, 260 (3d Cir. 1987) vacated and remanded to consider mootness, 484 U.S. 

999 (1988), VACATED, 852 F.2d 66 (3d Cir. 1988) (the Court of Appeals held that Commerce Clause powers were implicit in the Territory 

Clause, but that decision was vacated for other reasons.)

121 19 C.F.R. § 7.2. 
33

administration of the Territorial government. In contrast, the Secretary of the Treasury 

administers the customs laws of the USVI through the US Customs and Boarder 

Protection.

The tax status of the U.S. Virgin Islands is complicated and beyond the scope of this 

report. In sum, the tax laws applicable to the U.S. Virgin Islands are a mirror system 

with the U.S. tax code. The Territory cannot change this code or its application to the 

U.S. Virgin Islands. Only Congress can. So, while income tax paid by U.S. Virgin Islands

residents stays in the Islands, it is still technically owed to the U.S. Internal Revenue 

Service. A Virgin Islander meets their obligation to pay taxes to the Internal Revenue 

Service by paying them to the Virgin Islands Bureau of Internal Revenue. However, that 

was not a choice made by the USVI, nor one that it could have unilaterally imposed. It 

was a decision of the United States Congress, once again demonstrating Congress’ 

control over the U.S. Virgin Islands. 

Section 28A of the Revised Organic Act of 1954, as amended, states that all taxes paid 

in the US for products produced in the USVI are supposed to be returned to the USVI 

government for its general fund. However, only 13% of the taxes the U.S. imposes on 

the rum produced in the U.S. Virgin Islands is returned to the Islands and even that 

amount is subject to approval with each Congressional budget and has fluctuated 

throughout the years.

Further, the United States has NEVER returned ANY tax it has collected on the 

petroleum products produced in the U.S. Virgin Islands and sold in the United 

States. This is particularly egregious to the residents of St. Croix who are forced to live 

and deal with the environmental and health hazards created by the existence of the oil 

refinery on that island since 1963 without the tax benefits that were due to the Territory 

under the Revised Organic Act. When litigated, the US Courts have concluded that 

Section 28A does not mean what it explicitly and unambiguously says and that 

Congress can control the flow of tax cover returned to the Territory, including no return 

of any taxes.

122

Chapter Two: American Imperialism

I. Founding of the United States of America

The effort to identify the political and legal status of the U.S. Virgin Islands must include a 

discussion of the founding of the United States of America itself. Some information on the birth 

122 Pamela Colon, J.D., is a former counsel to the U.S. Virgin Islands Attorney General, Former Assistant Federal Public Defender for the U.S. 

Virgin Islands, and Past President of the Virgin Islands Bar Association. Attorney Colon is the Chair of the U.S. Virgin Islands Advisory 

Committee to the United States Commission on Civil Rights.
34

of the nation and the initial considerations for territories will provide background context and will 

bring the issues presented in this paper into proper perspective. 

The United States of America is a nation that was created during an anti-imperial revolt. Thirteen 

colonies of the British empire situated on the east coast of North America, suffering from “a long 

train of abuses and usurpations”123 under “absolute tyranny over these states”124, issued a joint 

declaration of independence on July 4, 1776, which held as self-evident and truths “that all men 

are created equal, that they are endowed by their creator with certain unalienable rights, that among 

these are Life, Liberty and the pursuit of Happiness.”125

The Declaration of Independence signaled the political birth of the United States. In that document, 

the former British colonies declared themselves “free and independent states absolved from all 

allegiance to the British crown.”126 The colonial representatives claimed George III, the King of 

England, had established absolute tyranny over the states and listed, among others, the following 

facts as grievances against the King:

1. Self-government was the chief concern of the colonists, having passed legislation in their 

assemblies on governing their slaves, and requesting representatives be sent to British 

Parliament. George III refused to ratify the legislation.127

2. Thomas Jefferson, inspired by the political philosophy of John Locke, identified the 

treatment of the colonies by the King’s governors as “neglect”, one of the valid reasons to 

dissolve a government according to Locke.128

3. In another grievance regarding a lack of self-government, Jefferson references the lack of 

representation in the legislatures.129

4. The majority of the colonies did not elect their own judges, as they were appointed by the 

King. Other colonies were deprived of indictment by grand jury and obstruction of the 

administration of justice.

130

123 Declaration of Independence, para. 2 (U.S. 1776). 124 Ibid. 125 Ibid. 126 Ibid. 127 The Declaration of Independence para. 3 (U.S. 1776). ("He has refused his Assent to Laws, the most wholesome and necessary for the public 

good.").

128 Id. at para. 4. ("He has forbidden his Governors to pass Laws of immediate and pressing importance unless suspended in their operation till his 

Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.").

129 Id. at para. 5. ("He has refused to pass other Laws for the accommodation of large districts of people unless those people would relinquish the 

right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.").

130 Id. at para 10-11. ("He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers. “) and 

("He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.").
35

5. All trade, internal and external, was controlled by the king.131

6. Perhaps the most well-known grievance listed in the Declaration was taxation without 

consent, or representation.

132

It should be noted that the Declaration of Independence was not as much a legal document as it 

was a justification for independence. Nothing in the document was prescriptive nor did it contain 

requests, orders, commands, etc. The language was decidedly non-prescriptive by communicating 

the message that the time for talk was over and the colonies were now independent states. The 

justification for this secession was the harm caused by the King against the people, and the consent 

of the people to form a new government.133 

The representatives of the colonies who drafted the document declared the “Right of the People to 

alter or abolish”134 the despotism under the English King, stated that in order to secure the rights 

of man, “Governments are instituted among Men, deriving their just powers from the consent of 

the governed.”135

So profound was this idea that the legitimacy of government emanated from the consent of the 

governed that it is contained in the four most important documents in the founding of this nation: 

The Declaration of Independence, The Articles of Confederation136, The Northwest Ordinance137, 

and the Constitution of the United States138. These four documents are to this day listed as the 

organic laws139 of the nation in the initial pages of the United States Code.140

The lofty ideas espoused in those documents were belied by the paradox, of course, in the 

institution of slavery and the discrete minority of Americans who qualified to vote, work, and own 

land. 

The newly independent states joined in confederation in 1778, the articles of which claimed each 

State as sovereign, free, and independent.141 Interestingly, in stark contrast to the language in the 

131 Id. at para. 18. ("For cutting off our Trade with all parts of the world".) 132 Id. at para. 19. ("For imposing taxes on us without our consent."). 133 Id. at para. 2. 134 Ibid. 135 Ibid. Emphasis added. 136 Articles of Confederation (U.S. 1777) 137 Ordinance of 1787: The Northwest Territorial Government (U.S. 1787) 138 The Constitution of the United States (U.S. 1787) 139 Organic law is the body of laws (as in a constitution) that define and establish a government, Fundamental law. Blacks Law Dictionary, (10th

ed. 2007). 140 Front Matter, Organic Laws, United States Code. https://uscode.house.gov/browse/frontmatter/organiclaws&edition=prelim . 141 Articles of Confederation, art I. (1778).
36

Declaration of Independence, the Articles of Confederation described a union of states.

142 The 

document scarcely mentions people at all.143 The delegates of the newly independent states decided 

upon a weak central government, state-by-state voting (each state receiving one vote in Congress), 

proportional tax burdens based on land values, and left unresolved the issue of expansion

(western lands).144 The States each had their own reservations about the Articles, but Maryland 

refused to ratify them until 1781 when Virginia relinquished its western land claims.

145

A. The Northwest Ordinance

The name of our country, The United States of America, has almost always been an incorrect 

identifier of the true scope of the land and people of the nation. On “March 1, 1784, only fortyseven days after the signing of the Treaty of Paris that granted the United States independence 

from Great Britan, Virginia ceded its claims over the north of the Ohio River to the federal 

government. With that, the United States was no longer a union of states alone but an amalgam of 

states and territories, which it has been ever since.146” 

Territorial boundaries were always a matter of contention in the colonies. Much of the early 

territory in North America was claimed by different sovereigns and land demarcations were often 

generalized with major landmarks like the Atlantic Ocean, a degree of latitude, and the Mississippi 

river. At one time, Connecticut and Massachusetts stretched from the Atlantic Ocean to the 

Mississippi river. Figure 2 shows the state land claims and cessions to the federal government in 

the period 1782 to 1802. 

Figure 2: State Land Claims and Cessions

142 Id. 143 Id. 144 Department of State, Office of the Historian, Articles of Confederation, 1777-1781. https://history.state.gov/milestones/1776-1783/articles 145 Ibid. 146 Immerwahr, The Greater United States, p.383
37

 

The Articles of Confederation did not address the land ceded by the states to the federal 

government. The Confederation Congress labeled the land as the Western Territory, and passed 

the Ordinance of 1784 which was an organic act creating the nation’s first organized territory.147 

Figure 3 Northwest Territory of 1787

147 An Ordinance for the Government of the Territory of the United States, North-West of the River Ohio. Confederation Congress (1787). 
38

II. The Insular Cases and the Applica�on of the Cons�tu�on to the U.S. VIRGIN 

ISLANDS

There exists a paradox between the United States being, at once, a republic and an empire. The 

United States’ empire was the fifth largest in the world in 1940.148 There were 19 million people 

living in the territories (approx. 12.6 percent of the total U.S. population).149 

“The poorer and weaker nation makes its choices within limits set, either directly or indirectly, by 

the powerful society, and often does so by choosing between alternatives actually formulated by 

the outsider.”150

A. American Expansion and Social Darwinism 

1. Economic Concerns

In 1828 James Madison foresaw a time, about 100 years in the future, where the continent “had 

been filled up and an industrial system had deprived most people of any truly productive 

property.”151 His fears were proven true far sooner than he expected. By the mid-1800’s, 

agricultural surpluses meant a search for foreign markets, “beef and pork, as well as wheat and 

cotton were streaming abroad in what seemed to be an always rising river of exports.”152The 

economic crisis of the 1870’s stoked the need for foreign markets and “influential businessmen 

were calling for overseas economic expansion.”153

An economic crisis in 1893, spurred by the failures of key railroads and manufacturers, quickly 

developed into a severe depression that would last until 1898.154 The first year alone, 500 banks 

and 15,000 businesses failed, and some 4 million people were unemployed.155 There was general 

agreement in all political circles that something drastic needed to be done.156 This led to an attitude, 

and agitation for, vigorous action in foreign policy to protect and open markets. The 1894 dispute 

with Great Britan over the boundary between Venezuela and British Guiana, the bold intervention

in the Brazilian revolution, and the “American-conceived and executed revolution against Queen 

148 Daniel Immerwahr, How to Hide an Empire, 11 (Farrar, Straus and Giroux, 1st ed. 2019). 149 Ibid. 150 William Appleman Williams, The Tragedy of American Diplomacy, p.54. 151 Ibid. at p.21 152 Ibid. at p.23. 153 Ibid. at p.26. 154 Ibid. at p.28. 155 Ibid. 156 Ibid. at p.29. 
39

Liliuokalani in Hawaii” are but a few examples of the aggressive U.S. foreign policy of the 

1890’s.157

The economic crisis, the need for foreign markets, and even the rhetoric of Christianity and the 

White Man’s Burden, pointed to the “practical conclusion that expansion was the way to stifle 

unrest, preserve democracy, and restore prosperity.”158American politicians and businessmen

viewed Asia, and China in particular, as “the great market that would absorb the surplus.”159 They

were concerned with Japan, Russia, France, England, and Germany all engaged in a veritable freefor-all to acquire territorial concessions in China.160

In 1896, President Cleveland was pressed to address the Cuban revolution to prevent “the 

wholesale destruction of property on the island...which is utterly destroying American investments 

that should be of immense value and is utterly impoverishing great numbers of Americans.”161The 

next summer, in 1897, Theodore Roosevelt sent President Mckinley a memorandum in which he 

advocated war in November, and specifically recommended that “we take and retain the 

Philippines.”162

On April 21, 1898, the United States declared war against Spain, the result of which (4 months 

later) added Puerto Rico, Guam, the Philippines, and control of Cuba to the American Empire. 

2. Racism

The concept of one person owning another person was not only a reality when the country was 

founded, it was also codified in the Constitution.163 The Northwest Ordinance, discussed above, 

contained a specific clause stating “the utmost good faith shall always be observed towards the 

Indians, their lands and property shall never be taken from them without their consent,”164yet some 

fifty years after the Ordinance was written, the Indian Removal Act of 1830165 started the forced 

removal of Indians from their land and resettling them without regard to prior agreements. 

157 Ibid. at p.30. 158 Ibid. at p.31. 159 Ibid. at p.42. 160 Ibid. at p. 39. 161 Ibid. 162 Paolo Coletta, McKinley, the Peace Negotiations, and the Acquisition of the Philippines, Pacific Historical Review, Vol. 30, No. 4, p.342, 

(1961).

163 See U.S. Const. art. I § 3 (all other persons, slaves, count as 3/5 of a person); art. I § 8, cl. 15 (Congressional debate over using militia in the 

South to suppress slave insurrections); art. I § 9, cl. 1 (the importation of slaves will be allowed until 1808); and art. IV § 2, cl. 3 (persons held to 

service escaping into another state shall be delivered up on claim of the party to whom such service may be due). 164 Supra note 119, at art. III. 165 An Act to Provide for an Exchange of Lands with the Indians Residing in any of the States or Territories, and for Their Removal West of the 

River Mississippi, Pub. L No. 21-148, 4 Stat. 411 (1830). 
40

The steady stream of laws to suppress and ostracize non-whites was extensive: 

• The Fugitive Slave Act of 1850166(penalized Federal law enforcement officials for not 

arresting alleged runaways), 

• the 1850 Foreign Miners Tax167(placed a $20 per month tax on all miners of foreign 

origin in California), 

• The Greaser Act of 1855168 (anti-Mexican law enacted in California thinly disguised as 

an anti-vagrancy statute), 

• The Black Codes of the 1860s169 (denied freed Blacks from the right to serve on juries, 

testify in court, serve in the state militia, jailed laborers who failed to sign yearly 

contracts, barred them from owning land, etc.), 

The United States of America did not outlaw slavery until 1865,170and soon after the 

Constitution was amended to “protect all the civil rights that pertain to freedom and 

citizenship.”171 However, even with these new protections the oppression continued: 

• The Page Act of 1875172 (prohibited the entry of Chinese women into the United States), 

• Indian Boarding Schools (tens of thousands of native-American children forced from 

their homes to attend training in American standards where they were forbidden to speak 

their native language, taught Christianity, and were generally forced to abandon their 

Indian identity), 

• The Chinese Exclusion Act of 1882173

• Dawes General Allotment Act of 1887174 (Congressional redistribution of Indian land 

transferred 93 million acres from Native American control to white settlers),

• The Scott Act of 1888175 (building upon the Chinese Exclusion Act, it left 20,000 to 30,000 

people stranded outside the United States), 

166 Pub. L. No. 31-60, 9 Stat. 462 (1850). 167 An Act to provide for the protection of foreigners, and to define their liabilities and privileges, Cal. Stat.___, April 22, 1850. 168 1855 Cal. Stat. 525 § 1. 169 See Generally Douglas Blackmon, Slavery by Another Name: The Re-Enslavement of Black Americans from the Civil War to WWII, New York: 

Doubleday (2008).

170 U.S. Const. amend. XIII. 171 Plessy v. Ferguson, 163 U.S. 537, 555 (1896) (Justice Harlan dissenting and characterizing the 14th and 15th amendments as such.) 172 Pub. L. No. 43-141, 18 Stat. 477, March 3, 1875. 173 Pub. L. No. 47-126, 22 Stat. 58, May 6, 1882. 174 Pub. L. No. 49-105, 24 Stat. 388, Feb. 8, 1887. 175 Pub. L. No. 50-1064, 25 Stat. 504, Oct. 1, 1888.
41

• Bennett Law of 1889176 (law in Wisconsin banning the use of German in all public and 

private schools), 

• Geary Act of 1892177 (Extended the Chinese Exclusion Act and mandated Chinese laborers 

carry resident permits to prove legal presence in the country, forbade Chinese from bearing 

witness in court and could not receive bail in habeas corpus proceedings).

The Supreme Court held in Plessy v. Ferguson178that racial segregation laws did not violate the 

U.S. Constitution. This is relevant to the present examination because American foreign policy 

was faced with the prospect of becoming a colonial power in the late 19th Century by “looking 

anxiously for markets abroad as a way of improving conditions at home”; from an economic 

standpoint, American businessmen were opposed to “the competition of native labor.”179 In fact, 

Secretary of State William Bryan stated “the Filipinos cannot be citizens without endangering our 

civilization.”180

The press was instrumental in creating an image of a benevolent Uncle Sam during the early stages 

of the Imperial expansion. Figure 4 shows an illustration during the sale of the Virgin Islands to 

the United States in 1917, the Danish press depicted the Virgin Islands as ‘pickaninnies’ and Figure 

5 is from the United States press depicting “something lacking” in the Philippines. Figure 6 depicts 

President McKinley giving the Philippines their first bath in civilization. Figure 7 depicts a stunned 

United States with an “unexpected” child in the Philippines. The caricatures were intended to 

dehumanize the people of the new territories. The Philippines had begun their own independence 

revolution before the United States intervention with Spain. Figure 8 depicts Philippine leadership 

in attendance at the Paris Peace Conference in 1898. Neither Spain nor the United States allowed 

the delegation to take part in the proceedings. Figure 9 depicts Philippine leader Emilio Aguinaldo 

who led the revolutionary forces. Figure 10 is perhaps the most telling. It depicts the new territories 

as unruly children at the feet of the U.S. the caption on the blackboard reads: “The U.S. must 

govern its new territories with or without their consent until they can govern themselves.” 

176 1889 Wisc. Act 519, April 18, 1889. 177 Pub. L. No. 52-60, 27 Stat. 25, May 5, 1892. 178 163 U.S. 537 (1896). 179 Williams, p. 46. 180 Ibid.
42

Figure 4: Danish Depiction of U.S. VIRGIN ISLANDS Sale Figure 5: USA Depicted as Benefactor
43

Figure 6: Philippines First Bath in Civilization Figure 7: U.S.A with Unexpected Newborn

Figure 8: Philippine Delegation to Paris Peace Talks Figure 9: Philippine Leader Emilio Aguinaldo
44

Figure 10 New Territories as Uncivilized Children

3. Expansion and the Constitution

The Treaty of Paris181 ending the war with Spain awarded the United States the Islands of Puerto 

Rico and Guam, gave the United States control of Cuba, and the sale of the Philippine Islands to 

the United States for $20 million. The economic crisis in the United States in the 1890s stoked the 

need for expansion and when the U.S. acquired these new territories the legal, political, and social 

landscape (as discussed in the previous sections) gripped the nation with the prospect of an 

Imperial America, but “many wondered how a country whose identity had been forged in the 

crucible of colonialism could, only a century after gaining its independence, administer an empire 

of its own.”182Every territory in the history of the young United States had evolved into statehood

(see Table 1). 

181 Treaty of Paris, U.S. – Spain, Dec. 10, 1898, 30 Stat. 1754. 182 Krishanti Vignarajah, The Political Roots of Judicial Legitimacy: Explaining the Enduring Validity of the Insular Cases, Univ. of Chicago Law 

Rev., Vol. 77 No. 2 (Spring 2010) pp.781-845.
45

Table 3. Territory Admissions

Northwest Territory 1787-1803 Became the State of Ohio and the Territory of Indiana

Southwest Territory 1790-1796 Became the State of Tennessee

Territory of Mississippi 1798-1817 Became the State of Mississippi and the Territory of Alabama

Territory of Indiana 1800-1816 Split into the Illinois Territory, the Michigan Territory, and the State of Indiana

Territory of Orleans 1804-1812 Became the State of Louisiana

Territory of Michigan 1805-1837 Became the State of Michigan and the Territory of Wisconsin

Territory of Louisiana 1805-1812 Preceded by the District of Louisiana, then renamed the Territory of Missouri

Territory of Illinois 1809-1812 Split into the State of Illinois and addi�ons to the Michigan Territory

Territory of Missouri 1812-1821 Became the State of Missouri and Unorganized Territory later atached to 

Territory of Michigan

Territory of Alabama 1817-1819 Became the State of Alabama

Territory of Arkansas 1819-1836 Became the State of Arkansas, addi�ons to the unorganized territory of the 

original Louisiana Purchase, and the Unorganized Territory (which eventually 

became Indian Territory, Oklahoma Territory, and No Man’s Land)

Territory of Florida 1822-1845 Became the State of Florida

Territory of Wisconsin 1836-1848 Split into the State of Wisconsin, the Iowa Territory, and Unorganized 

Territory

Territory of Iowa 1838-1846 Split into the State of Iowa and unorganized territory of the original Louisiana 

Purchase

Territory of Oregon 1848-1859 Preceded by the unrecognized Oregon Country; Split into the State of Oregon 

and the Washington Territory

Territory of Minnesota 1849-1858 Preceded by unorganized territory of the original Northwest Territory and 

original Louisiana Purchase; Split into the State of Minnesota and 

unorganized territory of the original Louisiana Purchase

Territory of New Mexico 1850-1912 Preceded by Nuevo Mexico; Split into the State of New Mexico and the 

Arizona Territory

Territory of Utah 1850-1896 Preceded by Alta California and the unrecognized State of Deseret; Split into 

the State of Utah, the Nevada Territory, addi�on to the Colorado Territory 

and addi�on to the Wyoming Territory

Territory of Washington 1853-1889 Became the State of Washington and addi�ons to the Idaho Territory

Territory of Kansas 1854-1867 Preceded by unorganized territory of the original Louisiana Purchase; Split 

into State of Kansas and addi�on to Colorado Territory

Territory of Nebraska 1854-1867 Preceded by unorganized territory of the original Louisiana Purchase; Split 

into the State of Nebraska, the Dakota Territory, addi�ons to the Idaho and 

Colorado Territories

Territory of Colorado 1861-1864 Preceded by parts of the territories of Kansas, Utah, New Mexico, and 

Nebraska; became the State of Colorado

Territory of Nevada 1861-1864 Preceded by Utah Territory and unrecognized State of Deseret; Became the 

State of Nevada

Territory of Dakota 1861-1889 Became the States of North and South Dakota; addi�ons to the Idaho and 

Wyoming Territories

Territory of Arizona 1863-1912 Became the State of Arizona and an addi�on to the State of Nevada

Territory of Idaho 1863-1890 Preceded by parts of the territories of Washington, Dakota, and Nebraska; 

Became the State of Idaho, the Montana Territory, and addi�ons to the 

Dakota and Wyoming Territories

Territory of Montana 1864-1889 Became the State of Montana

Territory of Wyoming 1868-1890 Preceded by parts of the Dakota, Utah, and Idaho Territories; Became the 

State of Wyoming

Territory of Oklahoma 1890-1907 Preceded by unorganized Indian Territory; Became the State of Oklahoma

Territory of Hawaii 1898-1959 Preceded by the Republic of Hawaii; Became the State of Hawaii

Territory of Alaska 1912-1959 Preceded by the Department of Alaska, and the District of Alaska; Became 

the State of Alaska

Source: Congressional Research Service, Admission of States to the Union: A Historical Reference Guide, R47747, Dec. 5, 2023.
46

Each new territory followed the plan laid out in the Northwest Ordinance,183 and “the document’s 

promise to admit the territories as future states “on an equal footing” with other states became a 

foundational principle of federalism.”184 The Ordinance did not extend the Constitution to the 

territory, but the “protections of freedom of worship, private property, jury trials, and its ban on 

‘cruel and unusual punishment’ all prefigured, often verbatim, the provisions of the Bill of 

Rights.”185

The Constitution’s grant of power to Congress to craft “all needful Rules and Regulations” for 

federal territories186, a provision adopted, James Madison suggested, specifically to validate the 

Northwest Ordinance.187The Western territory “is a mine of vast wealth to the United States” and 

under proper management will “furnish liberal tributes to the federal treasury,” Speaking of the 

territory, Madison wrote: 

We may calculate, therefore, that a rich and fertile country, of an area equal to the 

inhabited extent of the United States, will soon become a national stock. Congress have 

assumed the administration of this stock. They have begun to render it productive. 

Congress have undertaken to do more: they have proceeded to form new States, to 

erect temporary governments, to appoint officers for them, and to prescribe the 

conditions on which such States shall be admitted to the Confederacy.

188

The first major acquisition of land outside of the original Northwest Territory happened in 1803 

with the Louisiana Purchase (Treaty of Cession between the United States and France).189 In that 

treaty, the United States agreed to incorporate the inhabitants of the territory “as soon as 

possible according to the principles of the federal Constitution to the enjoyment of all these 

rights, advantages, and immunities of citizens of the United States.”190

The Adams – Onis Treaty of 1819191 which ceded Florida from Spain to the United States provided 

“The inhabitants of the ceded territories which His Catholic Majesty cedes to the United States, by 

this treaty, shall be incorporated in the Union of the United States as soon as may be consistent 

with the principles of the Federal Constitution, and admitted to the enjoyment of all the privileges, 

183 Supra note 134. 184 Gregory Ablavsky, Administrative Constitutionalism and the Northwest Ordinance, 167 Penn. L. Rev. 1631, 1632 (2019). 185 Northwest Ordinance at 340. 186 U.S. Const. art IV, § 3. 187 See The Federalist No. 38, at 191-92 (James Madison) (Ian Shapiro ed. 2009). 188 Ibid. 189 Treaty Between the United States of America and the French Republic (1803). 190 Ibid. art. III. 191 Treaty of Amity, Settlement, and Limits Between the United States of America and His Catholic Majesty (1819).
47

rights, and immunities of the citizens of the United States.”192 The Treaty of Guadalupe Hidalgo 

ending the war with Mexico in 1848, and ceding the majority of what is now the western United 

States, contained similar language.193

It was a stark and sudden departure from a century of precedent when the Treaty of Paris was 

negotiated in 1898 and contained the following language: “The civil rights and political status of 

the native inhabitants of the territories hereby ceded to the United States shall be determined by

Congress.”194The political and legal status of over 7.5 million people now lay in the hands of 

Congress. 

4. Plenary Power of Congress

Any evaluation of the political and legal status of the U.S. Virgin Islands, as well as the other 

territories, must begin with the Territory Clause of the Constitution195. Legal scholarship has 

described how the clause was originally understood and how that changed with the annexations of 

the Spanish Territories in 1898: 

Although what it means to be “unincorporated” remains contested to this day, every 

account of the Insular Cases agrees that they also stand for a considerably less modest 

proposition: that the federal government has the power to keep and govern territories 

indefinitely, without ever admitting them into statehood, or deannexing them. Before 

1898, territories annexed by the United States were presumed to be on a path to 

statehood. However, the annexation in 1898 of three territories populated largely by 

nonwhite people gave rise to a public debate over whether the United States, for the 

first time in its history, could continue to hold a territory indefinitely without eventually 

admitting it as a state. The Court found a way. It simply invented, out of whole cloth, 

the distinction between incorporated territories, which were on their way to statehood, 

and unincorporated territories, which might never become states, and placed these 

newly annexed territories in the latter category. The distinction between incorporated 

and unincorporated territories thus served as the cornerstone of a racially motivated 

imperialist legal doctrine: the idea of the unincorporated territory gave sanction to 

indefinite colonial rule over majority non-white populations at the margins of the 

American empire.196

Since the passage of the Northwest Ordinance, Territories have been considered under U.S. Sovereignty. 

Although local representa�on was provided for in the Ordinance, the territories were denied federal 

192 Ibid. art. VI. 193 Treaty of Peace, Friendship, limits, and Settlement Between the United States of America and the United Mexican States Concluded at 

Guadalupe Hidalgo, Feb. 2, 1848, art. VIII. 194 Treaty of Paris Between the United States of America and the Kingdom of Spain, U.S. – Spain, Dec. 10, 1898, 30 Stat. 1754. 195 U.S. Const. art. IV. 196 Duffy Ponsa-Kraus, The Insular Cases Run Amok: Against Constitutional Exceptionalism in the Territories, Yale Law Journal, 131:2449

(2022).
48

representa�on. As noted earlier, this created a Cons�tu�onal paradox, but the Supreme Court squared 

the Cons�tu�on’s language with the “implicit Convic�on that nonwhite people from unfamiliar cultures 

were ill-suited to par�cipate in a majority-white, Anglo-Saxon polity.

The political illegitimacy of unrepresentative federal rule over their inhabitants had 

been justified by the shared understanding, confirmed by consistent practice, that 

territorial status was a temporary necessity that would end when a territory became a 

state. But by giving constitutional sanction to the new and subordinate category of 

unincorporated territories, which might never become states, the Insular Cases raised 

the possibility that the United States could, if it so desired, govern unincorporated 

territories indefinitely despite the fact that their residents had neither representation 

in the federal government nor the assurance that such representation would be 

forthcoming upon their territory’s eventual admission as a state.197

The Supreme Court has interpreted the Territory Clause to grant plenary power to Congress in 

governing the Territories, a condition that remains to this day.198

III. Purchase of the U.S. VIRGIN ISLANDS

The Virgin Islands were purchased from Denmark in 1917. Formerly known as the Danish West 

Indies, the Islands had been under Danish rule since the late 1600s.199

A popular contemporary opinion was that the purchase was made to prevent Germany from 

obtaining the islands and establishing a base from which to threaten Porto Rico and the Panama 

Canal.200The purchase was a culmination of numerous episodes of diplomatic negotiations over a 

fifty-two-year period that began shortly after the Civil War when the strategic military 

importance of the islands was evidenced. 

An historian from the University of the Virgin Islands shared the following with the committee, 

noting the initial political organization of the Islands, and the evolution to the present-day, 

197 Ibid. 198 Ibid. See also Congressional Research Service, Statehood Process and Political Status of the U.S. Territories, IFF11792, March 19, 2021. 199 U.S. Dept. of the Interior, Office of Insular Affairs, https://www.doi.gov/oia/islands/virgin-islands. 

200 Hoover, The Virgin Islands Under American Rule, Foreign Affairs Vol. 4, No. 3 (1926). https://www.jstor.org/stable/20028473 . 
49

In the transition from Danish West Indies into the Virgin Islands of the United States 

the Islands were placed under the control of the U.S. Navy. The Danish Law of 1906 

remained in effect after transfer which provided only a very limited self-government by 

Colonial Councils whose members were appointed by the governor and representatives 

elected from a narrow pool of voters. Suffrage was tied to property requirements and 

limited by gender. While advocates within the Islands pressed for greater rights and an 

expanded franchise, the Islands remained under Naval jurisdiction from 1917 to 1931 

when their management was transferred to the Department of the Interior. Within the 

Virgin Islands, strong advocates emerged for greater political representation and rights, 

both within the island’s governing system as well as within the United States 

government. Virgin Islands advocates such as Rothschild Francis, Lionel Roberts, and 

D. Hamilton Jackson fought for a new governing framework for the Virgin Islands of 

the United States partnering with national organizations including the American 

Federation of Labor and the American Civil Liberties Union. The result was that while 

residents of the Virgin Islands had no formal role in the passage and adoption of the 

1936 Organic Act for the USVI (49 Stat. 1807) by Congress their concerns for greater 

suffrage and local political development were incorporated into the Act. 

Congress passed the Organic Act for the USVI (49 Stat. 1807) in 1936 which expanded 

the local electorate beyond the Danish limitations while continuing to limit participation 

in federal elections. The right to vote in local elections was extended to all men over 

the age of 21 removing property requirements and “blameless character” language, 

while also adding an English language literacy requirement. Suffrage was expanded to 

include women in 1938 due to the advocacy of Edith Wiliams, Eulalie Stevens, Anna 

Vessup and others. With the expansion of suffrage for local elections, local political 

activities expanded with the emergence of popular political parties that aimed at 

reforming and limiting the traditional control of political life by propertied elites. 

In 1954 Congress approved a revised version of the Organic Act. The process had little 

local input and no process for local approval. The 1954 revision continued the practice 

of Congressionally appointed governors, but changed aspects of internal government 

and laid a groundwork for greater self-government through local elections. Aimed at 

greater efficiency, the separate island councils established in 1936 for St. Thomas-St. 

John and St. Croix were consolidated into a unicameral legislature. Suffrage was
50

expanded with the removal of the English literacy requirement for voting which enabled 

greater political participation from Spanish-speaking residents (this included a 

significant population in St. Croix who had migrated from the nearby US territory 

Puerto Rico). 

In 1964 and 1971, two locally authorized constitutional conversations were held. Both 

called for greater political rights for Virgin Islands citizens, including an elected 

governor and a congressional delegate. Both of these proposals were later accepted by 

Congress. In 1976, Public Law-584 passed by Congress (Public Law 94-584, 90 STAT. 

2899) providing authorization to adopt a locally crafted constitution. Under this law an 

elected constitutional convention of U.S. Citizens and qualified voters was empowered 

to adopt a replacement to the Organic Act with conditions. Those conditions included 

that the document must be consistent with U.S. sovereignty and recognize the 

supremacy of federal law. The law must provide three branches of government 

(executive, legislative, and judicial) and contain a bill of rights. Once drafted the 

proposal was to be presented to the governor who would transmit the document to 

the US president. The president would then forward the document to Congress for final 

approval. In the process Congress could call for changes. The constitution would then 

be returned to the Virgin Islands for a referendum for acceptance. Several 

constitutional conventions have occurred, and the process of constitutional 

development continues within the Territory. 

Since purchase and transfer in 1917 the people of the Virgin Islands have worked to 

expand self-government within the limits set by their complex relationship to Congress 

and the United States. The work of local advocates has seen the Naval administration

replaced and the expansion of voting rights within the territory over time. A local 

government has emerged that includes an elected governor, a lieutenant governor, a 

unicameral legislature, an expanded judiciary, and greater fiscal control and economic 

decision-making. 201

201 Dr. Molly Perry, Ph. D., is currently an Assistant Professor of History and Geography at the University of the Virgin Islands. At UVI, Molly 

teaches courses on Caribbean history applying an interdisciplinary approach to encourage student research on central issues of the region’s 

development and people over time. Dr. Perry is a member of the U.S. Virgin Islands Advisory Committee to the USCCR.
51

IV. Current Status of the U.S. VIRGIN ISLANDS

There have been several attempts at drafting a constitution for the U.S. Virgin Islands. Currently, 

there is discussion on holding a Sixth Drafting Convention. Without a local Constitution, the 

people of the Virgin Islands are governed by the Revised Organic Act of 1954which requires 

congressional approval and would not alter the authority of Congress under the Territory 

Clause.202 Any proposed Constitution would require the approval of Congress and the President 

and would not alter the authority of Congress under the Territory Clause. 

Dr. Malik Sekou said this to the Commitee:

In the VI context, self-determination has that odd mix of seeking more civil rights as a 

US Citizen in one sense, which include a desire for a presidential vote, a desire for a vote 

delegator to Congress, and a desire to have more federal benefits in one hand. Yet on 

the other hand, we also want the level of autonomy here in the Virgin Islands that 

preserves our Caribbean identity and allow us to still have close ties through the region 

that we are a part of.203

Dr. Sekou, the Director of the Office of Self-Determination, believes the prudent path forward is 

to adopt a constitution based off of the Revised Organic Act of 1954 as a foundation.204Dr. Sekou 

does not believe the Islands have “civil rights violations within the territory.”205 He believes the 

real issues are “how can we have a capacity to vote for U.S. president...how can we have a delegate 

to Congress that has more power or more say in the federal government?”206

Dr. Neil Weare commented that “statehood is a political decision by Congress and the U.S. 

President. It only requires a majority vote by the House and Senate and the President’s signature. 

People look at statehood as something unattainable but ultimately it is simple legislation.”207He 

also said that there was precedent to giving the territories a vote for president. “The 23rd

Amendment gave the District of Columbia 3 electoral votes for president, and the Constitution has 

been amended many times to expand and protect voting rights.”208

202 United States v. Sanchez, 992 F.2d 1143, 1151-52 (11th Cir. 1993). (“Congress may unilaterally repeal the Puerto Rican Constitution or the 

Puerto Rican Federal Relations Act and replace them with any rules or regulations of its choice.”) 203 Malik Sekou, Testimony, briefing. September 21, 2023. 204 Ibid. at p.4 205 Ibid. 206 Ibid. 207 Neil Weare, Testimony, briefing, p.9 208 Ibid. 
52

Attorney Judith Bourne and Dr. Carlyle Corbin both reference international treaties signed by the 

United States as fundamental to the federal government’s responsibility in developing the political 

and economic economies in the Virgin Islands. Ms. Bourne told the Committee:

The Charter of the United Nations states that there is a responsibility that Nation 

members have towards non-self-governing territories. The United States recognizes the 

U.S. VIRGIN ISLANDS as a non-self-governing territory. Under international law, 

negotiations between the U.S. and the U.S.V.I must be conducted on an equal basis. The 

U.S. cannot begin negotiating by saying “well, first of all, you’re under the Territorial 

Clause so we have that supremacy before we start negotiations.” The Virgin Islands 

should start looking at these international agreements and try to see what they say to 

us in terms of what we really want to have.209

Dr. Corbin told the committee that an upgrade of the territorial status, or the awarding of 

presidential votes would only provide the U.S. Virgin Islands with a position of lesser inequality. 

The answer is a genuine political education program followed by acts of self-determination as is 

required under the United Nations Charter.210

V. Conclusion

The U.S. Virgin Islands Advisory Committee offers the following conclusion to its inaugural 

report. 

In 1917, the year the Virgin Islands were purchased by the United States, the ideas of social rights 

and civil rights were not yet delineated. Black Americans, and other racial or ethnic minorities, 

were relegated to an internal colonialism as was expertly documented in 1959 by the United States 

Commission on Civil Rights. Voting rights were not enforced leaving men of color without a vote. 

Women were denied the franchise altogether. There were no laws in place to ensure workplace 

safety, equal opportunity, equal pay, or discrimination in general. Disabled Americans were 

marginalized by limited access to buildings, sub-minimum wages, and no requirements for their 

employers to make workplace accommodations for those that could otherwise perform the 

essential functions of a job. 

209 Judith Bourne, Testimony, Briefing, p. 4. 210 Corbin, Testimony, Briefing, p.12.
53

Civil Rights for these groups came gradually. For many Americans, the turning point in the struggle 

for universal civil rights was the landmark case of Brown v. Board of Education which dismantled 

the doctrine of separate-but-equal adopted by the U.S. Supreme Court in Plessy v. Ferguson. For 

most of the groups identified in the previous paragraph, laws, norms, and attitudes have changed 

and the United States has inched closer to the promises of equality and due process identified in 

the Constitution. 

The U.S. Citizens living in the Territories, however, remain trapped in what would be called 

“apartheid” if it were located anywhere else. Case law based on racist tropes and an indifference 

by Congress toward nearly 4 million U.S. Citizens, has left the Territories in general and the U.S. 

Virgin Islands specifically, without a means to meaningfully influence legislation that governs their 

daily lives, and without the means to vote for the people who make those decisions. 

The Constitution grants Congress the power to dispose of and make all needful rules and 

regulations respecting the territory but does not define “needful” or enumerate rules and 

regulations within this scope. Justice John Marshall Harlan, who felt that Congress was always 

bound to enact laws within the jurisdiction of the Constitution had this to say in his dissent in 

Downs v. Bidwell: 

This nation is under the control of a written constitution, the supreme law of the land 

and the only source of the powers which our government, or any branch or officer of it, 

may exert at any time or at any place.

He held that the Congress had no existence outside the Constitution and thus had no authority to 

complete rule in the territories. He continued: 

The idea prevails with some, indeed it has expression in arguments at the bar, that we 

have in this country substantially two national governments; one to be maintained under 

the Constitution, with all its restrictions; the other to be maintained by Congress outside 

and independently of that instrument, by exercising such powers as other nations of the 

earth are accustomed to. ... I take leave to say that, if the principles thus announced 

should ever receive the sanction of a majority of this court, a radical and mischievous 

change in our system will result. We will, in that event, pass from the era of 

constitutional liberty guarded and protected by a written constitution into an era of 

legislative absolutism. ... It will be an evil day for American Liberty if the theory of a 

government outside the Supreme Law of the Land finds lodgment in our Constitutional 
54

Jurisprudence. No higher duty rests upon this court than to exert its full authority to 

prevent all violation of the principles of the Constitution.211 

Considered the most important of the Insular Cases, Downs v. Bidwell, was based on racist 

logic and was decided by the same Supreme Court Justices that decided Plessy v. Ferguson. 

Separate but equal was struck down seventy years ago and in the interim numerous laws have been

passed in the United States to correct the discrimination and injustices of the past. It is time that 

the people of the United States Virgin Islands, citizens of the United States, take their rightful 

political and legal place as equals in the American family.

211 182 U.S. 244 (1901)
55

Findings

1. The lack of self-determination of American citizens living in the U.S. Virgin Islands raises 

Constitutional, international, and human rights concerns. 

2. The international law requirements, as mandated by United Nations Treaty, requires the 

United States to bring the U.S. Virgin Islands to the full measure of self-government. 

3. The three political solutions are (a) Independence, (b) Incorporation, and (c) Free 

Association. 

4. The general population of the U.S. may lack awareness of the political status of U.S. Citizens 

living in the Islands. 

5. The Department of Interior has an obligation to inform the citizens of the U.S. Virgin Islands 

of the options available and their role within the framework of the United States political 

system.

Recommenda�ons

1. The United States Commission on Civil Rights should initiate a series of joint discussions 

with Puerto Rico, Guam, American Samoa, the Northern Marianas Islands, and the U.S. 

Virgin Islands to reference the civil rights concerns on a larger context. There are 

common concerns that are so ingrained in the nature of territorial governance that 

addressing them jointly would justify stakeholder concern. 

2. The United States Commission on Civil Rights should recommend to the Congress that 

Department of the Interior, Office of Insular Affairs, draft a proposal for the Congress to 

consider, that would give U.S. citizens living in the Territories a vote in federal elections 

and voting representation in Congress. 

3. The United States Commission on Civil Rights should recommend to the Congress that it 

pass legislation implementing the Constitution in full to all the Territories. 
56

U.S. Virgin Islands Advisory Committee to the 

United States Commission on Civil Rights

U. S. Commission on Civil Rights Contact

USCCR Contact: Dbarreras@usccr.gov

Regional Programs Unit:

Kluczynski Federal Building

230 S Dearborn Street

Chicago IL, 60604

(312) 353-8311

This report is the work of the U.S. Virgin Islands Advisory Committee to the U.S. Commission on Civil Rights. The 

report, which may rely on studies and data generated by third parties, is not subject to an independent review by 

Commission staff. Advisory Committee reports to the Commission are wholly independent and reviewed by 

Commission staff only for legal and procedural compliance with Commission policies and procedures. Advisory 

Committee reports are not subject to Commission approval, fact-checking, or policy changes. The views expressed in 

this report and the findings and recommendations contained herein are those of a majority of the Advisory Committee 

members and do not necessarily represent the views of the Commission or its individual members, nor do they 

represent the policies of the U.S. Government.