CARTA ABIERTA

10/30/2012 | Filed under: Estadidad,Status | Posted by: Francisco

CARTA ABIERTA

PARA TODOS LOS CREYENTES EN LA UNIÓN PERMANENTE DEL PUEBLO DE PUERTO RICO CON LOS ESTADOS UNIDOS DE AMÉRICA

Por Mario E. Porrata 26 de Octubre de 2012

El movimiento estadista de Puerto Rico tiene un reto enorme en derrotar la opción de Estado Libre Asociado Soberano en la Segunda Consulta del plebiscito del 6 de noviembre de 2012.

La opción de Estado Libre Asociado Soberano está definida de la siguiente manera en la papeleta:

Lo único que heredó Albi de don Luis A. Ferre fue su apellido.

Estado Libre Asociado Soberano: Prefiero que Puerto Rico adopte un estatus fuera de la Cláusula Territorial de la Constitución de Estados Unidos, que reconozca la soberanía del Pueblo de Puerto Rico. El Estado Libre Asociado Soberano se basaría en una asociación política libre y voluntaria, cuyos términos específicos se acordarían entre Estados Unidos y Puerto Rico como naciones soberanas, Dicho acuerdo dispondría el alcance de los poderes jurisdiccionales que el Pueblo de Puerto Rico autorice dejar en manos de Estados Unidos y retendría los restantes poderes o autoridades jurisdiccionales.

Si está de acuerdo, marque aquí ________.

De acuerdo a esta definición, si el Pueblo de Puerto Rico optara por la opción de Estado Libre Asociado Soberano (en adelante ELA Soberano) en el plebiscito, en efecto el Pueblo estaría solicitando la separación de Puerto Rico de los Estados Unidos para entrar en un pacto de Libre Asociación “entre Estados Unidos y Puerto Rico como naciones soberanas.” En efecto el Pueblo de Puerto Rico estaría pidiendo la independencia de Puerto Rico de los Estados Unidos.

Si este fuera el verdadero sentir del Pueblo de Puerto Rico, yo no tendría problema alguno con esa decisión. Pero nuestra experiencia de muchos años manejando el tema del estatus de Puerto Rico nos indica que en su gran mayoría estos votantes atesoran su ciudadanía de los Estados Unidos y no son independentistas. Por eso la opción de independencia como tal no tiene respaldo en las encuestas. Pero el ELA Soberano, que es una petición de independencia, sí tiene respaldo. ¿Por qué?

La razón es sencilla. La frase “Estado Libre Asociado” está impregnada en el Pueblo como si fuera nuestro estatus político. Y eso incluye a todo el mundo – estadistas, independentistas y realengos. Y dicho “estatus” ha sido percibido como beneficioso para el Pueblo, todos por igual. La lealtad a ese “estatus” por parte del Pueblo es incuestionable. Por lo tanto, al haber incluido la frase “Estado Libre Asociado” dentro de la opción de Estado Libre Asociado Soberano en la Segunda Consulta del plebiscito, muchos votantes identificados por muchos años con dicha frase se inclinan a pensar que están votando por lo que ellos conocen y tienen, y posiblemente piensan que lo del apellido de “Soberano” mejora dicha condición. ¡Las encuestas indican que un 25% de los PNP’s, que no son independentistas, votarían por esta opción!

Recibo e-mails, y notas en Facebook y en Youtube, diciéndome que la Libre Asociación no es lo mismo que la independencia. De las notas se implica que bajo la Libre Asociación nos quedamos como estamos bajo la bandera de los EEUU – con ciudadanía Americana, fondos federales, y todo lo que es bueno bajo la condición territorial. Sin dudas, la ignorancia es atrevida; pero eso es parte del impacto tan enorme que ha tenido el Engaño del Estado Libre Asociado como nuestro estatus político en nuestro Pueblo. Vivimos en una fantasía que tenemos que aclarar. Y nos queda sólo una semana para hacerlo.

Por eso….

Se necesita la cooperación de todos y cada uno de nosotros para llevar un mensaje claro al Pueblo de Puerto Rico sobre la manera de votar en esa Segunda Consulta del plebiscito del 6 de noviembre de 2012.

La idea errónea básica es que bajo la Independencia en Libre Asociación el Pueblo de Puerto Rico se queda como está y, quizás, mejor. Muy pocas personas conocen lo que significa la Libre Asociación ni cómo se logra, incluyendo estadistas. Por tal razón, le presento a ustedes algunos conocimientos de personas en posición de opinar que los pueden ayudar a comprender lo que siginifica la Libre Asociación para el Pueblo de Puerto Rico y lo que requiere para lograrla.

Uno es el Sr. Dick Thornburgh, ex Secretario de Justicia de los Estados Unidas bajo la presidencia de George W. Bush, y el Sr. Fred Zeder, Embajador a las Islas del Pacífico y arquitecto del Pacto de Libre Asociación con ellas. Igualmente vamos a citar al Congressional Research Service en asuntos relacionados a este tema.

Pero antes, vamos a ver lo que dicen las Naciones Unidas al respecto: En la Resolución 1541(XV) de las Naciones Unidas, se reconoce en el Principio VI: Puede considerarse que un territorio no-autónomo ha alcanzado la plenitud del gobierno propio:

a) Cuando pasa a ser un Estado Independiente y soberano;

b) Cuando establece una libre asociación con un estado independiente; o

c) Cuando se integra a un Estado Independiente.

¿Qué significa “plenitud de gobierno propio” para las Naciones Unidas? Significa independencia total, libre de influencias extranjeras en la toma de sus decisiones. En otras palabras, soberanía propia. Por lo tanto, una vez se adquiere soberanía propia, o sea plenitud de gobierno propio, se puede establecer pactos de libre asociación con otros países. Si un territorio no ha adquirido “plenitud de gobierno propio,” no puede establecer pactos de Libre Asociación con otros países.

De hecho, los Estados Unidos tuvo que transferir los poderes que tenía sobre las Islas del Pacífico para que éstas adquirieran “plenitud de gobierno propio” y así entrar en un pacto de libre asociación con ellas. Citamos del Apéndice A:

On July 12, 1978, following a Constitutional Convention, the people of four of the former Districts of the Trust Territory, Truk (now Chuuk), Yap, Ponape (now Pohnpei) and Kusaie (now Kosrae) voted in a referendum to form a Federation under the Constitution of the Federated States of Micronesia (FSM). United Nations observers certified this referendum as a legitimate act of self-determination. Thereby, the people reasserted their inherent sovereignty which had remained dormant, but intact, throughout the years of stewardship by the League of Nations and the United Nations. …. Upon implementation of the FSM Constitution on May 10, 1979, the former Districts became States of the Federation, and in due course adopted their own State constitutions. …. Thereupon, the United States entered upon a period (1979-86) of orderly transfer of governmental functions consistent with the terms and intent of the UN Trusteeship Agreement.

Actualmente Puerto Rico es un territorio de los Estados Unidos sujeto a la Constitución Federal y a los poderes permisibles al Congreso bajo la cláusula territorial. El Pueblo de Puerto Rico disfruta de una autonomía limitada para el manejo de asuntos locales, pero no tiene “plenitud de gobierno propio.” Por lo tanto, bajo la condición territorial actual el Pueblo de Puerto Rico no tiene la capacidad legal para entrar en un pacto de Libre Asociación con algún país soberano. Puerto Rico tendría que advenir a su independencia primero para luego intentar un pacto de Libre Asociación con otro país.

El plebiscito del 6 de noviembre le ofrece esa oportunidad al Pueblo de Puerto Rico mediante las opciones de Independencia como tal y mediante el ELA Soberano.

Un voto mayoritario por la Independencia, mediante la suma de los votos por la Independencia como tal más los votos por la Libre Asociación bajo el ELA Soberano, destruiría el alto grado de integración constitucional federal que el Pueblo de Puerto Rico ha alcanzado y nos colocaría fuera de la jurisdicción de los Estados Unidos.

Por esta razón reproduzco el siguiente documento que fué sometido al Congreso de los Estados Unidos por el ex-Embajador de Estados Unidos Fred M. Zeder II durante las vistas del proyecto de estatus H.R. 856 del representante Don Young. Véase Apéndice B.

Relations between the U.S. and a nation which is independent or in free association are conducted on the basis of international law. Thus, independence and free association are status options which would remove Puerto Rico from its present existence within the sphere of sovereignty of the United States and establish a separate Puerto Rican sovereignty outside the political union and federal constitutional system of the United States. Instead of completing the integration process through full incorporation and statehood, either independence or free association would «dis-integrate» Puerto Rico from the United States. This would terminate U.S. sovereignty, nationality and citizenship and end application of the U.S. Constitution in Puerto Rico. In other words, the process of gradual integration which began in 1898, and which was advanced by statutory U.S. citizenship in 1917 and establishment of constitutional arrangements approved by the people in 1952, would be terminated in favor of either independence or free association. Estas son palabras mayores que deben ser atendidas con mucho cuidado y un altísimo grado de responsabilidad. El ELA Soberano terminaría con la nacionalidad y la ciudadanía de los Estados Unidos en Puerto Rico. Nos dice el Sr. Thornburgh (Véase Apéndice C-2):

Congress has never recognized so-called «dual Puerto Rico and U.S. citizenship», because there is no underlying dual nationality. Currently there is only one nationality in Puerto Rico, that of the United States. All forms of statutory territorial citizenship are derived from that single U.S. nationality, and nationality is governed by the federal rather than the local constitution. If one loses U.S. nationality, all forms of statutory territorial citizenship under federal and local law are lost as well. To have a recognized separate nationality and citizenship there must be two separate nations under two separate constitutional systems.

Thornburgh nos indica que en el sistema constitucional de los EEUU se puede ser nacional sin ser ciudadano de los EEUU; pero que no es posible tener ciudadanía de los EEUU sin ser nacional. Si perdemos la nacionalidad, se pierde la ciudadanía, incluyendo la estatutoria que tenemos.

Toda la integración del Pueblo de Puerto Rico al sistema constitucional de los Estados Unidos es producto de estatutos del Congreso. Y la misma puede ser derogada en cualquier momento.

Por eso, el plebiscito presenta dos riesgos importantes para el Pueblo de Puerto Rico:

El primer riesgo es votar por el SI en la Primera Consulta. No podemos olvidar que los resultados de los plebiscitos anteriores han sido interpretados como un rechazo a la estadidad en ciertos círculos políticos en los estados. La suerte que hemos tenido ha sido que los plebiscitos fueron diseñados con maña y los resultados se presentaron como confusos. Nos dice Thornburgh (Apéndice C-1):

The people of Puerto Rico have been told that they may adopt a permanent and apparently self- executing «improved commonwealth» proposal…..

Therefore, just as with the status options of statehood and separate nationhood, in an initial referendum on status the definition of «commonwealth» cannot be merely a list of proposals for discretionary benefits that might be possible. Rather, the definitions must inform the voter as to the constitutional structure of each status and the political process through which any option chosen by the people can be realized. ….

The foundation for all discussions of Puerto Rico’s future status and relationship with the United States must rest on an unambiguous understanding of Puerto Rico’s current status.

Bajo la premisa de que el Pueblo fue llevado a votar de manera engañosa en los plebiscitos anteriores, nos liberamos de la seriedad que hubiese tenido la acusación de que rechazamos la estadidad y, por lo tanto, a los Estados Unidos.

En este plebiscito del 6 de noviembre no existe esa cortina de humo que nos favoreció en los anteriores. La pregunta de la primera consulta va al meollo de nuestro problema con el estatus: ¿Prefieres mantener la condición política territorial actual? Dado el hecho de que la opción de estadidad se encuentra en la misma papeleta y en la segunda consulta, un voto por el SI será interpretado como un rechazo a la estadidad en ciertos círculos políticos en los Estados. Y en esta ocasión no tendremos la excusa de la confusión de los otros plebiscitos. La reacción será brutal y abultada. Y necesitaremos páginas y páginas de explicaciones para evitar que el Congreso caiga en lo que nos advierte el Congressional Research Service en su reporte Análysis HR 856 del proyecto de estatus del representante Don Young (Apéndice D):

would provide the basis for such an action, as would a determination by Congress that full incorporation and statehood is not intended. That is what Congress decided in the case of the Philippines in 1916. Si el voto por el SI provoca que el Congreso pierda el interés en que Puerto Rico se convierta en el próximo Estado, como reacción a nuestra falta de interés en convertir a Puerto Rico en Estado, las consecuencias serán funestas. Ni quiero pensar en ello.

El segundo riesgo que nos corremos es el más peligroso. Un triunfo de la Independencia, ayudado por el voto al ELA Soberano, nos afectará de manera brutal, no importa el resultado de la primera consulta. Veamos. Si gana el SI, nuestra economía se vendrá al suelo; y la reacción del Congreso puede ser fatal. Si gana el NO, nos veremos solicitando la separación de Puerto Rico de los Estados Unidos. Y cuando el Pueblo se dé cuenta que metió la pata, la convulsión va a ser enorme. Pero ya será tarde. Quiero cerrar esta sección citando otra vez al CRS, pero de manera más completa:

In the case of citizenship in Puerto Rico, this means Congress would have to repeal 8 U.S.C. 1402 by a subsequent statute for what Congress determines to be legitimate Federal purposes. The recognition by Congress of a separate Puerto Rican nationality or sovereignty would provide the basis for such an action, as would a determination by Congress that full incorporation and statehood is not intended. That is what Congress decided in the case of the Philippines in 1916. ….

The only way to secure Constitutionally-protected citizenship is to complete the process of Constitutional integration so that people born in Puerto Rico also will be born in a State of the Union for purposes of the 14th Amendment.….

As the Supreme Court stated in the Bellei decision, the attempt to transform the permissive statutory citizenship into an irrevocable status binding on the U.S. in perpetuity, `* * * would convert what is congressional generosity into something unanticipated and obviously undesired by Congress.’

La estadidad para Puerto Rico está disponible desde hace años. El Engaño del ELA como nuestro estatus político ha impedido que el Pueblo solicite la Estadidad Total. El plebiscito del 6 de noviembre nos ofrece la oportunidad de pedirla. Llegó la hora de hacerlo; es nuestra obligación. Nuestro mensaje será claro: Somos ciudadanos de los Estados Unidos y en esa capacidad vamos a este plebiscito; No queremos seguir en la condición territorial; Queremos la Estadidad total con todos sus derechos y obligaciones.

CONCLUSIÓN

NOS QUEDA UNA SEMANA PARA DECIRLE LA VERDAD ALPUEBLO SOBRE LA INDEPENDENCIA EN LIBRE ASOCIACIÓN BAJO EL ESTADO LIBRE ASOCIADO SOBERANO. PARA QUE NO SE IGNORE NUESTRA COMUNICACIÓN, TENEMOS QUE CITAR A MR. ÑEMERSON, YA QUE A NOSOTROS NO SE NOS CREE.

— USEN LOS DOCUMENTOS QUE LES SOMETO. Y APROVECHEN CUANTA OPORTUNIDAD TENGAN PARA DECIRLE AL PUEBLO LO QUE HAY. COMO DICEN EN LOS DEPORTES, NO HAY MAÑANA. SI NO LO HACEMOS HOY, NO HAY MAÑANA.

Saludos, Mario E. Porrata

Apéndice A

History

In 1525 Portuguese navigators in search of the Spice Islands (Indonesia) came upon Yap and Ulithi. Spanish expeditions later made the first European contact with the rest of the Caroline Islands. Spain claimed sovereignty over the Caroline Islands until 1899. At that time, Spain withdrew from its Pacific insular areas and sold its interests to Germany, except for Guam which became a US insular area.

(At left, German Map of Micronesia, 1908-click map for larger image). German administration encouraged the development of trade and production of copra. In 1914 German administration ended when the Japanese navy took military possession of the Marshall, Caroline and Northern Mariana Islands.

Japan began its formal administration under a League of Nations mandate in 1920. During this period, extensive settlement resulted

in a Japanese population of over 100,000 throughout Micronesia. The indigenous population was then about 40,000. Sugar cane, mining, fishing and tropical agriculture became the major industries.

World War II brought an abrupt end to the relative prosperity experienced during Japanese civil administration. By the War’s conclusion most infrastructure had been laid waste by bombing, and the islands and people had been exploited by the Japanese Military to the point of impoverishment.

The United Nations created the Trust Territory of the Pacific Islands (TTPI) in 1947. Ponape (then including Kusaie), Truk, Yap, Palau, the Marshall Islands and the Northern Mariana Islands, together constituted the TTPI. The United States accepted the role of Trustee of this, the only United Nations Trusteeship to be designated as a «Security Trusteeship,» whose ultimate disposition was to be determined by the UN Security Council. As Trustee the US was to «promote the economic advancement and self-sufficiency of the inhabitants.»

The President of the US appointed a High Commissioner of the TTPI, and he, in turn, appointed an administrator for each of the «Districts» mentioned above. The TTPI remained under the civil administration of the US Navy Department until 1951, when authority passed to the Department of the Interior. In 1979, upon implementation of the FSM Constitution, the US recognized the establishment of the FSM national and state governments. Self- sufficiency, however, remained a dim prospect, in part because private-sector growth had never been encouraged by the TT Administration.

determination. Thereby, the people reasserted their inherent sovereignty which had remained dormant, but intact, throughout the years of stewardship by the League of Nations and the United Nations.

Upon implementation of the FSM Constitution on May 10, 1979, the former Districts became States of the Federation, and in due course adopted their own State constitutions. Nationwide democratic elections were held to elect officials of the National and four State governments. The Honorable Tosiwo Nakayama, the former President of the Congress of Micronesia, became the first President of the FSM and formed his Cabinet. The new Congress of the FSM convened, elected the Honorable Bethwel Henry as Speaker, and began to enact laws for the new Nation. A judicial system was established pursuant to the National and State constitutions. Thereupon, the United States entered upon a period (1979-86) of orderly transfer of governmental functions consistent with the terms and intent of the UN Trusteeship Agreement.

The Compact of Free Association with the US was signed on October 1, 1982, and entered into force on November 3, 1986.

The Federated States of Micronesia became a member of the United Nations on September 17, 1991.

Apéndice B

UNDERSTANDING FREE ASSOCIATION AS A FORM OF SEPARATE SOVEREIGNTY AND POLITICAL INDEPENDENCE IN THE CASE OF DECOLONIZATION OF PUERTO RICO

By Ambassador Fred M. Zeder II

Consistent with relevant resolutions of the U.N. General Assembly, Puerto Rico’s options for full self-government are: Independence (Example: Philippines); Free Association (Example: Republic of the Marshall Islands); Integration (Example: Hawaii). See, G.A. Resolution 1514 (1960); G.A. Resolution 1541 (1960); G.A. Resolution 2625 (1970).

For purposes of international law including the relevant U.N. resolutions international conventions to which the U.S. is a party, the current status of Puerto Rico is best described as substantial but incomplete integration. This means that the decolonization process that commenced in 1952 has not been fulfilled.

As a matter of U.S. domestic constitutional law, a territory within U.S. sovereignty which has internal constitutional self-government but is not fully integrated into the national system of political union on the basis of equality remains an unincorporated territory, and can be referred to as a «commonwealth.» (Example: Puerto Rico and the Northern Mariana Islands).

For purposes of U.S. constitutional law, independence and free association are status options which are created and exist on the international plane. Thus, instead of the sovereign primacy of Congress under the territorial clause, the sources of constitutional authority with respect to nations with separate sovereignty include the article II, section 2 treaty-making power and the applicable article I, section 8 powers of Congress such as that relating to nationality and immigration law.

Instead of completing the integration process through full incorporation and statehood, either independence or free association would «dis-integrate» Puerto Rico from the United States. This would terminate U.S. sovereignty, nationality and citizenship and end application of the U.S. Constitution in Puerto Rico. In other words, the process of gradual integration which began in 1898, and which

was advanced by statutory U.S. citizenship in 1917 and establishment of constitutional arrangements approved by the people in 1952, would be terminated in favor of either independence or free association.

Under either independence or free association the U.S. and Puerto Rico could enter into treaties to define relations on a sovereign-to-sovereign basis. Free association as practiced by the U.S. is simply a form of independence in which two sovereign nations agree to a special close relationship that involves delegations of the sovereign powers of the associated to the United States in such areas as defense and other governmental functions to the extent both parties to the treaty-based relationship agree to continue such arrangements.

The specific features of free association and balance between autonomy and interdependence can vary within well-defined limits based on negotiated terms to which both parties to the arrangement have agreed, but all such features must be consistent with the structure of the agreement as a treaty-based sovereign-to-sovereign relationship. In U.S. experience and practice, even where free association has many features of a dependent territorial status the sources and allocation of constitutional authority triggered by the underlying separation of sovereignty, nationality and citizenship causes the relationship to evolve in the direction of full independence rather than functional re-integration.

Free association is essentially a transitional status for peoples who do not seek full integration, but rather seek to maintain close political, economic and security relations with another nation during the period after separate sovereignty is achieved. Again, this could be accomplished by treaty between independent nations as well. Thus, free association is a form of separate sovereignty that usually arises from the relationship between a colonial power and a people formerly in a colonial status who at least temporarily want close ties with the former colonial power for so long as both parties agree to the arrangements.

Free association is recognized as a distinct form of separate sovereignty, even though legally it also is consistent with independence. Specifically, free association is consistent with independence because, as explained below, the special and close bilateral relationship created by a free association treaty or pact can be terminated in favor of conventional independence at any time by either party.

In addition, the U.S. and the international community have recognized that a separate nation can be a party to a bilateral pact of free association and be an independent nation in the conventional sense at the same time. For example, the Republic of the Marshall Islands is party to the Compact of Free Association with the United States, but has been admitted to the United Nations as an independent nation.

Thus, the international practice regarding free association actually is best

understood as a method of facilitating the decolonization process leading to simple and absolute independence. Essentially, it allows new nations not prepared economically, socially or strategically for emergence into conventional independence to achieve separate nationhood in cooperation with a former colonial power or another existing nation.

Under international law and practice including the relevant U.N. resolutions and existing free association precedents, free association must be terminable at will by either party in order to establish that the relationship is consistent with separate sovereignty and the right of self-determination is preserved. This international standard, also recognized by the U.S., is based on the requirement that free association not be allowed to become merely a new form of internationally accepted colonialism.

Specifically, free association is not intended to create a new form of territorial status or quasi-sovereignty. It is not a «nation-within-a-nation» relationship or a form of irrevocable permanent union, but is, again, a sovereign-to-sovereign treaty-based relationship which is either of limited duration or terminable at will by either party acting unilaterally.

In other words, both parties have a sovereign right to terminate the relationship at any time. The free association treaty may provide for the terms and measures which will apply in the event of unilateral termination, but the ability of either party to do so can not be conditioned or encumbered in such a manner that the exercise of the right to terminate the relationship effectively is impaired or precluded.

For that reason, the territory and population of each nation involved must be within the sovereignty, nationality and citizenship of that nation, and the elements and mechanisms of the free association relationship must be defined consistent with that requirement. Separate and distinct sovereignty and nationality must be established at the time of decolonization and preserved under the relationship or the ability of either party to terminate will be impaired.

Thus, the major power may grant to people of the free associated nation special rights normally associated with the major power’s own citizenship classifications, such as open immigration and residence rights.

However, these arrangements are subject to the same terminality as the overall relationship, and thus may be either for a limited duration or subject to unilateral termination by either party at any time.

Consequently, there can be no permanent mass dual nationality because this would be inconsistent with the preservation of the underlying separate sovereignty. Any special rights or classifications of the major power extended to the people of a free associated nation are more in the nature of residency rights and do not prevent either nation from exercising separate sovereignty with respect to the nationality its own population.

Upon termination of the free association relationship by either party, any such classifications or special residency rights will be subject to unilateral termination as well. Both during and after any period of free association, the people of each of the two nations will owe their allegiance to and have the separate nationality of their own country. Any attempt to deviate from these norms of international law and practice would undermine the sovereignty of both nations, as would impair the right of self-determination which must be preserved to ensure the relationship is based on consent rather than coercion.

In summary, the United States recognizes each of the three U.N. accepted status options for Puerto Rico to achieve full self-government. One of those options, integration, is within U.S. sovereignty and the federal political union, the other two, independence and free association, exist without U.S. sovereignty, nationality and citizenship.

Obviously, Puerto Rico can not act unilaterally to establish a new status. This is so not only because of U.S. sovereignty and the authority of Congress under the territorial clause, but also because Puerto Rico seeks the agreement of the U.S. to the terms under which any of these options would be implemented. This means Congress must agree to the terms under which a new status is defined and implemented.

There is no right on the part of Puerto Rico unilaterally to define its relationship with the United States.

Nor would it be consistent with U.S. commitments to respect the right of self-

determination for non-self-governing people under U.S. administration to dispose of the territory of Puerto Rico in a manner which does not take into account the freely expressed wishes of the residents.

Thus, as the two parties which must define and carry out a future relationship based on consent and the right of self-determination which each must exercise, Congress, on behalf of the United States, and the people of Puerto Rico, acting through their constitutional process, must decide whether decolonization will be completed through completion of the process for integration into union or separation and nationhood apart from the U.S. for Puerto Rico.

Fred M. Zeder II -In 1982, the U.S. Senate confirmed President Ronald Reagan’s appointment of Zeder as the President’s personal representative for Micronesian status negotiations. Holding the rank of ambassador, Zeder concluded the historic Compact of Free Association Act of 1985. This compact was the first successful political status resolution process for U.S. administered territories since Alaska and Hawaii were admitted to the Union.

Apéndice C-1

Thornburgh — A Constitutional Framework for Puerto Rico Self-Determination www.puertorico-herald.org

A Constitutional Framework for Puerto Rico Self-Determination Dick Thornburgh

See Related Articles

KIRKPATRICK & LOCKHART LLP 1800 Massachusetts Avenue, N.W.

Washington, D.C. 20036

February 9, 1998

Congressman Don Young

Chairman, House Committee on Resources

1324 Longworth House Office Building

Washington, D.C. 20515

RE: Constitutional Framework for Puerto Rico Self-Determination Dear Mr. Chairman:

When I had the honor of serving as Attorney General and Chairman of the Domestic Policy Council, I closely followed Congress’ struggle to develop a more sound federal legal policy to resolve Puerto Rico’s political status.

The issue was very important to President Bush, as I know it is important to members of Congress on both sides of the aisle, the people of the States of the Union, and, of course, the people of Puerto Rico. I am writing you now because I am concerned that certain fundamental facts about the relationship between Puerto Rico and the Congress have been distorted in a way that may undermine any proposal for informed self-determination. The democratic process requires that the people of Puerto Rico and in the States of the Union obtain accurate information to make important decisions about the nature of their relationship.

Informed self-determination requires that certain fundamental constitutional issues be clarified. First and foremost, Congress must confirm for the people of Puerto Rico that Puerto Rico is still governed ultimately by the Congress pursuant to the Territory Clause of the U.S. Constitution, and that the Supremacy Clause guarantees that federal law controls in Puerto Rico, as in the States and all territories of the United States. In 1991, I testified before Congress on legislative proposals to provide a framework for informed self-determination, and at that time I urged that the process also be based on clear direction from Congress as to what options should be presented for a vote by the Puerto Rico electorate.

The political status legislation which emerged in Congress in 1990 and 1991 did not receive the support needed for enactment into law during my tenure as Attorney General. In addition, the status referendum conducted in Puerto Rico under local law in 1993 without Congressional support or recognition failed to clarify Puerto Rico’s status for reasons which included a confused and misleading ballot. Because I believe it is time to resolve the issue of Puerto Rico’s political status, I have been following the development of H.R. 856 and companion legislation in the Senate with keen interest. In my view, this legislation represents significant progress in establishing the principles which must be respected in any legitimate self-determination process to resolve the status question.

I note with concern, however, that it continues to be the position of some that the present «commonwealth» arrangement should be «improved» (or «enhanced») and made permanent. Some advocates of permanent commonwealth in
Puerto Rico also seek separate nationality and powers of consent over federal law, powers that even States of the Union do not have under the U.S. Constitution. These individuals would present Congress and the people of Puerto Rico with a definition of «commonwealth» that cannot be implemented. Specifically, Congress is not able to transform the current commonwealth status for Puerto Rico as created by statute into a permanent status guaranteed by the U.S. Constitution.

There is an irreconcilable constitutional conflict that prevents the

establishment of a permanent, fixed commonwealth status for Puerto Rico. Only

States have a permanent, constitutionally guaranteed status under the federal system, and, without a constitutional amendment, nothing done by this Congress can bind future Congresses in the treatment of Puerto Rico.

The need for a permanent status resolution approved by Congress is made even more clear to me because of my experience as a former Under-Secretary-General of the United Nations. As the highest ranking American official in the United Nations organization, I came to understand thoroughly that the national constitutional processes of the member states define the status of territories under their sovereignty. As discussed in the attached paper, those in Puerto Rico who assert that the U.N. decolinization process determines Puerto Rico’s status in a way that is binding on the United States are simply incorrect.

I have been asked to advise on these matters by the Citizens Educational Foundation of Puerto Rico, a non-partisan, not for profit education foundation dedicated to the full enjoyment of the rights and privileges of U.S. citizenship for all the people of Puerto Rico. In that capacity I have prepared the attached brief discussion of the legal and constitutional framework that should guide the resolution of the issue of Puerto Rico’s status. I include the discussion here in the hope that it will be helpful to the Committee in its work on H.R. 856.

Thank you for your consideration of this information. Please contact me if I may be of any further assistance as you address this very important issue. Sincerely,

Dick Thornburgh

THE STATUS OF PUERTO RICO A CONSTITUTIONAL FRAMEWORK FOR SELF-DETERMINATION

In any future political status vote in Puerto Rico it will be necessary to ensure that the voters understand each of the options presented to them: statehood, separate nationhood and continued commonwealth status.

There generally appears to be an understanding of the statehood and separate

nationhood options. Unfortunately, there appears to be a great deal of

misinformation about the commonwealth option. The people of Puerto Rico have

been told that they may adopt a permanent and apparently self-executing

«improved commonwealth» proposal. As with the options of statehood or separate

nationhood, commonwealth status however defined could become effective only

when Congress responds to the freely expressed wishes of the people of Puerto

Rico. Consequently, to resolve the status issue, Congress must vote to accept

the terms of any option approved by the voters of Puerto Rico.

Therefore, just as with the status options of statehood and separate

nationhood, in an initial referendum on status the definition of

«commonwealth» cannot be merely a list of proposals for discretionary benefits

that might be possible. Rather, the definitions must inform the voter as to

the constitutional structure of each status and the political process through

which any option chosen by the people can be realized.

The foundation for all discussions of Puerto Rico’s future status and

relationship with the United States must rest on an unambiguous understanding

of Puerto Rico’s current status. Puerto Rico is presently an unincorporated

territory of the United States. Puerto Rico is within the national sovereignty

of the United States, but is not a State of the Union. Therefore, unlike a

State of the Union, Congress exercises sovereignty in Puerto Rico, including

application of U.S. laws and treaties, under the Territory Clause of the U.S.

Constitution (U.S. Const., Art. IV, Sec. 3, Cl. 2).

The Territory Clause reads, «[t]he 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» U.S. Const., Art. IV, Sec.

3, Cl. 2). That Clause gives Congress the ultimate authority to govern Puerto

Rico. Under the Constitution of Puerto Rico, approved by Congress and the

people of Puerto Rico in 1952, Puerto Rico, like a State of the Union, is an

autonomous political entity which exercises sovereignty over matters not

governed under the United States Constitution. However, this is a statutory

delegation of local sovereignty, subject to the Territory Clause authority

retained by Congress.

The constitutional structure and political process through which

Puerto Rico can pursue improvements to «commonwealth» has been in place for

the four decades since the current «Commonwealth of Puerto Rico» structure of local self-government was established pursuant to U.S. Public Law 81-600 in

1952. This does not mean that changes to the present commonwealth structure

which may be proposed as improvements are unattainable simply because Congress

has failed to adopt those changes in the past. However, any definition of

«commonwealth» cannot be adopted unless it is consistent with constitutional

principles and informs voters of the following realities.

Relevant History

The United States exercises sovereignty with respect to Puerto Rico pursuant

to the Treaty of Paris proclaimed by President McKinley on April 11, 1899.

Article IX of that treaty provided that, as of that date, persons residing

in Puerto Rico who either were not eligible for or did not elect to continue

allegiance to Spain or any other nation henceforth would be held under the

laws of the United States and international law to owe allegiance to and

have the nationality of the United States. Article IX provided further that

the «civil rights and political status of the native inhabitants» of Puerto

Rico «shall be determined by the Congress.»

Puerto Rico is an unincorporated territory of the United States which is

self-governing in its internal affairs and administration. Puerto Rico’s

self-government structure exists under a local constitution approved by

Congress and adopted by the United States citizen residents of the territory

in 1952, as authorized by United States Public Law 81-600.

On September 27, 1953, the General Assembly of the United Nations approved

Resolution 748(VIII), recognizing the establishment of commonwealth internal

self-government in Puerto Rico. Section 9 of that resolution, however,

expressly recognized that further self-determination would take place in

Puerto Rico «in the eventuality that either of the parties to the mutually

agreed association may desire any change in the terms of this association.»

In a political status plebiscite conducted under Puerto Rican law, without

Congressional recognition or sponsorship, on November 14, 1993, less than a

majority of the voters approved the «commonwealth» option on the ballot. In

light of the fact that the current commonwealth relationship was established

in 1952 on the basis of consent by the voters of Puerto Rico, this result

underscores the need for a further process of self-determination to resolve

the political status of Puerto Rico based on majority consent within Puerto

Rico and the approval of Congress.

On January 23, 1997, the Puerto Rico Legislature approved Concurrent

Resolution 2, which requested the 105th Congress «to respond to the

democratic aspirations of the American citizens of Puerto Rico» by approving

measures to bring about «a plebiscite sponsored by the Federal Government,

to be held no later that 1998.» The preceding events constitute the constitutional and legal context in

which H.R. 856 properly should be considered by Congress. The U.N.

resolution cited above, like the U.N. Charter itself, is not self-executing,

and resolution of Puerto Rico’s status can only be accomplished through the

U.S. Constitutional process. Pursuant to the U.S. Constitution, an area

under the sovereignty of the U.S. that is not included in a State «must

necessarily be governed by or under the authority of Congress,» National

Bank v. County of Yankton, 101 U.S. 129, 133 (1880), i.e., pursuant to the

Territory Clause of the Constitution.

Defining Commonwealth

In 1952 Congress approved establishment of the present commonwealth

structure of internal self-government and sovereignty over local affairs in

Puerto Rico. Congress did this by exercising the authority reserved to it by

the Territory Clause of the U.S. Constitution. The Territory Clause remains

the source of constitutional authority for Congress to adopt legislation

with respect to Puerto Rico, including the authority to approve any proposed

change to the existing commonwealth structure.

In Puerto Rico, as in a State of the Union, the U.S. Constitution, treaties

and laws of the United States are the supreme law, as made applicable to

Puerto Rico by Congress and under rulings of the Supreme Court of the United

States. U.S. Const., Art. VI, Cl. 2.

Unlike the conditions of a State of the Union under the U.S. Constitution,

the «Commonwealth of Puerto Rico» structure of government is not a

constitutionally guaranteed or fully-self-governing political status.

Rather, «commonwealth» in the case of Puerto Rico is a form of local

self-government established under a statutory authorization by Congress and

instituted under a local constitution approved by Congress and adopted with

the consent of the people of Puerto Rico in the manner prescribed by

Congress. The political status of Puerto Rico remains that of an

unincorporated territory, administered locally under this form of

constitutional self-government, limited to internal matters and subject to

the plenary authority of Congress under the Territory Clause.

Unlike a State of the Union, the form of internal self-government

established by Congress for Puerto Rico with the consent of the people in

1952 is not a permanent structure, provision or feature of the U.S.

Constitution or the constitutional process of the United States. In

contrast, the sovereignty of a State of the Union and the people thereof who

have full constitutional citizenship is a permanent feature of the U.S.

Constitution. This is expressly recognized in the federal constitution,

including the Tenth Amendment. The grant of internal sovereignty for Puerto

Rico and a statutory form of citizenship for Puerto Ricans flow from

Congress exercising the discretion retained under the Territory Clause.

Puerto Rico is thus «like a state» in some respects but does not have a full

measure of self-government. Under the current system, U.S. citizens of

Puerto Rico are subject to U.S. sovereignty and law but remain

disenfranchised in the federal political system. This disenfranchisement is

the direct result of Puerto Rico’s commonwealth status, for as long as

Congress exercises ultimate sovereignty through the Territory Clause, Puerto

Ricans will not possess the full panoply of political rights exercised by

U.S. citizens in the States of the Union. This is why clarification of the

actual nature of commonwealth is so important. Informed self-determination

cannot take place, leading to full self-government, as long as the myth of

commonwealth as a form of permanent «associated» statehood stands without

rebuttal. To empower the people of Puerto Rico, it must be confirmed that

territorial commonwealth cannot be «enhanced» so as to «justify» permanent

disenfranchisement and less than equal citizenship.

Acting under the Territory Clause, Congress has authority to approve

statutes which provide for application in Puerto Rico of provisions of the

U.S. Constitution, as well as statutory extension of the rights, privileges

and immunities of U.S. citizens under the Constitution, laws and treaties of

the United States. It is also within Congressional authority under the

Territory Clause to provide for Puerto Rico’s autonomy and sovereignty over

internal matters and local affairs. However, U.S. laws apply to Puerto Rico

and are enforceable only as long as such statutes are in effect. Congress

retains authority under the Territory Clause to amend or repeal any or all

such statutory provisions.

The Territory Clause authorizes Congress to establish procedures for consent

by the people of Puerto Rico to the terms and structure of internal

self-government under applicable federal statutes. However, a future

Congress would not be bound or prevented thereby from changing U.S. law or

policy to provide for self-government and self-determination through other

means, including statehood or separate sovereignty.

In the case of the «Commonwealth of the Northern Mariana Islands» (P.L.

94-241) Congress required that it consent to any proposal by the local

government to change the Islands’ commonwealth structure. Congress also

required the consent of the people of the territory before Congress could

impose changes to the local commonwealth structure. Of course, Congress

exercised its discretion in the specific context of the Commonwealth of the

Northern Mariana Islands, which was an unincorporated territory subject to

the Territory Clause. The requirement of consent runs to the form of

internal self-government agreed to by Congress and enacted by statute, not

the political status of the territory or the form of statutory «union» which

exists at this time. Congress retains the power to more fully incorporate any such «commonwealth»

territory into the U.S. constitutional system, or to reverse the political

integration process by advancing self-government options other than

continuation of the current commonwealth form. The U.S. Supreme Court has

consistently and explicitly recognized the plenary authority of Congress

over non-state areas pursuant to the Territory Clause. Harris v. Rosario,

446 U.S. 651 (1980) (per curiam); Downes v. Bidwell, N.Y., 182 U.S. 267

(1901); Crespo v. U.S., 151 F.2nd 44 (C.C.A. Puerto Rico), cert. dism. 327

U.S. 758 (1945). Such Congressional authority is recognized and limited by

U.S. Supreme Court rulings that the federal government must respect

«fundamental rights» in exercising its powers in non-state areas under U.S.

sovereign control. See Balzac v. People of Puerto Rico, 258 U.S. 298.

(1922). Balzac and its progeny require that Congress report due process and

equal protection principles in structuring the measures required to resolve

the Puerto Rico status question consistent with the national interest.

The present statutory U.S. citizenship of persons born in Puerto Rico does

not arise from or exist by virtue of the Constitution of Puerto Rico, or the

Puerto Rico Federal Relations Act pursuant to which that local constitution

was instituted (P.L. 81-600). Eligibility of persons born in Puerto Rico for

U.S. citizenship results entirely from an exercise of Congressional

discretion. Statutory citizenship initially was prescribed by the organic

act of Puerto Rico («Jones Act», 39 Stat. 461 March 2, 1917). In 1940

Congress amended the territorial organic act by removing the provisions

governing the citizenship status of Puerto Ricans and included that

statutory citizenship in Section 202 of the Nationality Act of 1940. When

the Constitution of Puerto Rico was being approved in 1952, Congress again

revised the statutory U.S. citizenship provision for Puerto Ricans in

Section 302 of the Immigration and Nationality Act. That revision of U.S.

citizenship for Puerto Ricans was codified at 8 U.S.C. §1402, and Congress

has chosen not to amend that provision further since 1952.

The definition and conferral of U.S. citizenship for persons born in Puerto

Rico as described above was not part of the process for establishment of the

«Commonwealth of Puerto Rico» structure of constitutional government. U.S.

citizenship was conferred by separate statute and was not subject to consent

or approval in the process described in Section 1 of P.L. 81-600 (48 U.S.C.

§731b) as being «in the nature of a compact.» The reference to U.S.

citizenship in the Preamble to the Puerto Rico Constitution does not alter

the legal nature of citizenship for Puerto Ricans. Nor did approval of the

Puerto Rico constitution convert statutory U.S. citizenship conferred under

the Territory Clause into the same constitutionally guaranteed citizenship

arising from birth in a State of the Union.

The history of citizenship for Puerto Ricans confirms beyond debate that the

nationality and U.S. citizenship of persons born in Puerto Rico is a matter

governed by U.S. laws enacted by Congress unilaterally — albeit with broad

popular support and acceptance among Puerto Ricans. This unilateral exercise

of Territory Clause authority to define the citizenship status of persons

born in Puerto Rico is consistent with Article IX of the Treaty of Paris.

Clearly, the U.S. nationality and citizenship is not within the internal

sovereignty exercised by the people of Puerto Rico under the commonwealth

structure of local self-government.

Congress has the power to alter, regulate or even terminate the current

rights, privileges, immunities and benefits of U.S. citizenship for persons

born in Puerto Rico. No one can anticipate or predict the circumstances

under which Congress would exercise those powers, but the historical

precedents created in the case of the Philippines and other U.S. territories

make it clear that this is a matter subject to the discretion of Congress

and that such discretion is based primarily on political criteria rather

than constitutional or legal factors. Inherent in any definition of

commonwealth, the U.S. citizenship of persons born in Puerto Rico is secured

by statute and not the U.S. Constitution itself.

While the «fundamental rights» analysis of Balzac (cited above) would apply

to actions of the U.S. in Puerto Rico, the U.S. Constitution itself is not

thereby made applicable to Puerto Rico as in a State of the Union. The

people of Puerto Rico need to understand that Congress retains authority to

alter the status of Puerto Rico or end U.S. citizenship for persons born in

Puerto Rico in favor of some other status. The U.S. Supreme Court, in Balzac

and other cases, simply requires Congress to act consistently with due

process and equal protection principles. For example, in the event the

people of Puerto Rico vote in an informed act of self-determination to

continue the current status, Congress, acting unilaterally, may strike a new

balance in the territorial relationship.

If the commonwealth status continues, Congress will continue to exercise

plenary authority over Puerto Rico’s governance. Congress could choose to

extend federal taxation in Puerto Rico and/or choose to reduce spending

levels. Without changing Puerto Rico’s internal constitutional government,

Congress also could decide to begin to reverse the decades in inclusion in

domestic legislation and in federal programs. This form of internal autonomy

and «dis-integration» from the Union would have dramatic implications for

the people of Puerto Rico. For example, Congress could choose to revert to a

citizenship regime similar to that imposed by the Foraker Act in 1900 — in

which U.S. citizenship would end for persons born in the territory and be

replaced by an exclusive territorial citizenship with such rights and

benefits as Congress deems appropriate. If the local population rejects the

option of integration leading to statehood, Congress could logically

conclude that such dis-integration is necessary and appropriate.

The ruling of the Supreme Court in Rogers v. Bellei 401 U.S. 815 (1970),

regarding the nature of statutory citizenship is consistent with the

conclusion that even a statutory extension of the Fourteenth Amendment to

Puerto Rico could not limit the discretion of Congress to amend or repeal

that statutory extension. Thus, the U.S. citizenship created under 8 U.S.C.

§1402 does not and cannot offer the permanent or constitutional protection

of the Fourteenth Amendment to the people of Puerto Rico. Similarly, the

protection of persons born in a State of the Union under Afroyim v. Rusk 307

U.S. 253 (1967), would not prevent Congress from changing laws defining the

citizenship of people born in Puerto Rico.

Conclusion The preceding analysis is a brief attempt to sort out fundamental

constitutional issues which have become obscured from Congress and the people

of Puerto Rico as a result of decades of confusion and misrepresentations

about the nature of the current status. The national interest requires that

Congress come to grips with the need to resolve the status of Puerto Rico

before it becomes even more difficult for the Congress and the people of

Puerto Rico to understand the real choices facing them.

Thus, if the definition of commonwealth in a referendum informs voters

that the people of Puerto Rico, will be able to propose what they regard as

improvements to the current commonwealth structure, that definition also must

make it clear that approval of such a ballot by Congress does not constitute a

commitment on the part of Congress to approve such changes to commonwealth as

may be proposed by Puerto Rico. In addition, it also must be clear that no

political status relationship between Puerto Rico and the United States

established by statute under the Territory Clause constitutionally binds a

future Congress.

The purpose of these observation is not to defend the status quo or

the degree of Federal authority over Puerto Rico. Rather, the goal is to

illuminate and reveal the inherent difficulties under our Constitution of perpetuating indefinitely a less than fully self-governing territorial status

for a large population of U.S. citizens. In America, we believe the rights and

status of citizens should be guaranteed, rather than permissive. Basic civil

rights should be secured by the Constitution and not subject to the discretion

of the Congress. That condition of full empowerment and equal citizenship will

not exist in Puerto Rico as long as it is a territorial commonwealth.

Any ballot definition which does not make these truths apparent will

lack constitutional legitimacy, as well as simple honesty.

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Apéndice C-2

Some Truths About U.S. Nationality and Citizenship for Puerto

Rico

Dick Thornburgh*

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During a recent visit to Puerto Rico, my conversations with island residents convinced me that the misconceptions which have encumbered Puerto Rico in its quest for complete decolonization finally are being dispelled. In both Washington, D.C. and San Juan a new honesty about the political status dilemma is replacing the vestigial colonial mentality that has lingered all too long in this relationship. This new honesty is essential if the people of Puerto Rico are to participate in a meaningful debate about the future political status of the island and its residents.

Both in Puerto Rico and Washington, now is the time to clarify what the real status options are and to educate all concerned about the effects of each option. Long overdue reforms in federal and local policies have laid the groundwork for new opportunities for Puerto Rico and the United States once we resolve the status issue. Moreover, the end of the Cold War and a changing world economic and political order make it all the more important for Puerto Rico to secure a permanent status.

The most immediate task at hand is for Congress to define status options in a clear and politically realistic way that reflects how each status alternative relates to the U.S. national interest. If Congress does its job in this regard, the residents of Puerto Rico will be empowered to act in their own self-interest and express their future political status aspirations accordingly.

Unfortunately, that task has been complicated by the fact the ballot definition of commonwealth status in the 1993 plebiscite may have led many voters to believe there is some sort of «super status» with special rights that Congress somehow can bestow permanently on Puerto Rico. The idea that a mutually agreed political relationship can be put beyond the reach of a future Congress is alluring because it avoids the hard choices required to achieve a permanent status. The idea is alluring, but misleading.

That is precisely why in the next referendum it must be clear that Congress cannot create by statute a constitutionally guaranteed «super-status» which does not exist under the

U.S. Constitution. The self-determination bill passed by the House of Representatives on March 4 accurately describes continuation of the current political structure and U.S. citizenship as a Congressional policy rather than a constitutional guarantee. Ironically, that simple statement of truth caused the bill’s sponsors to be accused of using anti-

commonwealth scare tactics.

Instead of generating either unnecessary alarm or a false sense of security regarding these fundamental issues, the best course is to empower people with the truth. That is why it is imperative to clarify that the current U.S. citizenship policy, like the previous «citizen of Puerto Rico» status under the Foraker Act, constitutes nothing more than a statutory form of citizenship based on birth in the territory. By definition, such statutory citizenship is conferred permissively at the discretion of Congress under the territorial clause and other powers enumerated in the U.S. Constitution.

That is why Congress was, in fact, able to end «citizenship of Puerto Rico» under the Foraker Act and replace it with statutory U.S. citizenship, even requiring an election between these two forms of territorial citizenship under the Jones Act in 1917. For purposes of both federal and local law, «citizenship of Puerto Rico» was essentially a domicile status for persons born in the territory with U.S. nationality and U.S. citizens residing in Puerto Rico.

Consequently, permanent and constitutionally guaranteed status with separate Puerto Rican nationality and citizenship, can come about only if Puerto Rico undergoes succession to separate nationhood with its own sovereignty and constitutional citizenship. In that event application of the U.S. constitution in the independent nation of Puerto Rico would end, along with U.S. sovereignty, nationality and citizenship.

The administrative mechanics for succession of nationality in such a case would be set by Congress through a transition process, but there should be no illusion that any mass dual citizenship will result. U.S. law may allow U.S. citizens individually to acquire a dual nationality under foreign laws, but – as I testified before the Senate in 1991 in my capacity as U.S. Attorney General – for Congress to create by law universal dual citizenship for the entire population of a foreign country is politically implausible and legally problematic.

In my view, there is no «creative fix» or «innovative statesmanship» through which to circumvent the structure of U.S. federalism and national sovereignty in these matters. Even if there were, Congress is more likely to fall back on the historical decolonization options of statehood or independence before it would contort U.S. nationality law just to avoid the difficult choices required to resolve the status of Puerto Rico.

That is why, with optimism instead of fear, all those who want to see Puerto Rico’s status resolved should seek the truth about each option, including the upside and the downside of each. That foundation of truth will empower the people of Puerto Rico to make an act of informed self-determination for themselves and their following generations.

* Dick Thornburgh, former Attorney General of the United States under Presidents Reagan and Bush and two term Governor of Pennsylvania, now practices law in Washington, D.C. with the firm of Kirkpatrick & Lockhart, LLP.

Apéndice D

Analysis of H.R. 856H.R. 856 – United States-Puerto Rico Political Status Act PURPOSE OF THE BILL The purpose of H.R. 856 is to provide a process leading to full self-government for Puerto Rico. BACKGROUND AND NEED FOR LEGISLATION

History of Puerto Rico’s legal and political status Puerto Rico and the Caribbean in American history During the age of European discovery and colonialism, and later in the Revolutionary period when the American political culture was born, Puerto Rico and the Caribbean islands were geographically, economically and politically an integral part of the North American experience.

Puerto Rico was one of Christopher Columbus’ landfalls, and thus was an important part of the European discovery and exploration of the New World. Ponce de Leon, the European discoverer of Florida, was the first Spanish Governor of Puerto Rico. Alexander Hamilton–aide de camp to General Washington during the Revolutionary War, collaborator with Madison in The Federalist Papers and at the Constitutional Convention in Philadelphia, as well as the first Secretary of the Treasury of the United States–was born and raised in the Virgin Islands adjacent to Puerto Rico.

Although the Spanish American War was decided on Cuban soil, by July 1898 the progress of the war made the time right for the U.S. occupation of Spanish-ruled Puerto Rico. An armistice was signed by the belligerents on August 12, and after securing Puerto Rico, U.S. forces evacuated the Spanish governor-general on October 18, 1898. At that time, Major General Nelson A. Miles, commanding officer of the invading forces, issued a proclamation which informed the people of Puerto Rico that: “We have not come to make war on the people of a country that for several centuries has been oppressed, but, on the contrary, to bring protection, not only to yourselves but to your property, to promote your prosperity, and to bestow upon you the immunities and blessings of the liberal institutions of our government. “

Upon becoming law, H.R. 856 will be the most significant measure enacted by Congress in nearly 100 years for the purpose of delivering on the promise of General Miles’ pronouncement, by finally offering the options for full self-government to the people of Puerto Rico. Puerto Rico as United States possession

Puerto Rico was ceded to the United States by the Kingdom of Spain under the Treaty of Peace ending the Spanish-American War, signed at Paris on December 10, 1898, and proclaimed on April 11, 1899. Consistent with the powers of Congress conferred by Article IV, Section 3, Clause 2 of the U.S. Constitution (the Territorial Clause), as well as long-established U.S. Constitutional practice with

respect to administration of territories which come under U.S. sovereignty but are not yet incorporated into the Union, Article IX of the Treaty of Paris provided that the `civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by the Congress.’ Congress exercised its territorial powers and carried out its role under Article IX of the Treaty of Paris by providing for civilian government and defining the status of the residents under the Foraker Act (Act of April 12, 1900, c. 191. 31 Stat. 77).

Shortly thereafter the Supreme Court ruled that Puerto Rico and the other territories ceded under the Treaty of Paris had the status of unincorporated territories subject to the plenary authority of the U.S. Congress under the Territorial Clause, and that the Constitution and laws of the U.S. would apply in such U.S. possessions as determined by Congress. Downes v. Bidwell, 182 U.S. 244 (1901); Dorr v. United States, 195 U.S. 138 (1904). Puerto Ricans’ citizen status

In 1904 the Supreme Court confirmed that under the Foraker Act the people of Puerto Rico–as inhabitants of a territory which had come under U.S. sovereignty and nationality–were not `aliens’ under U.S. immigration law, and were entitled at home or abroad to the protection of the United States. Gonzales v. Williams, 195 U.S. 1 (1904). While recognizing that the territory and its residents had come within U.S. nationality by operation of Article IX of the Treaty of Paris, in accordance with that same provision of the Treaty the Court left to Congress the authority and responsibility to determine the citizenship status and rights of the Puerto Rican body politic under U.S. sovereignty.

Thus, under the Foraker Act the residents and persons born in Puerto Rico were classified under Federal law as `citizens of Puerto Rico’ until 1917.

Under the Jones Act (Act of March 2, 1917, c. 145, 39 Stat. 961), Congress extended statutory

U.S. citizenship to residents of Puerto Rico, but less than equal civil rights, and statutory rather than Constitutional citizenship of Puerto Rican residents continued under that arrangement due to the continuation of unincorporated territory status. The Jones Act also reorganized local civilian government, but in contrast to the incorporation of Alaska, or the determination of Congress in 1916 that the unincorporated territory status of the Philippines would be terminated in favor of independence (39 Stat. 546), the Jones Act for Puerto Rico did not resolve the question of an ultimate status for the territory. Even after internal self-government was established under Public Law 81-600 in 1952, statutory rather than Constitutional citizenship has continued under 8 U.S.C. 1402, and less than equal civil rights for persons born in the territory also continues, as discussed below.

For as long as unincorporated territory status continues, the extent to which rights under the

U.S. Constitution apply to, actions of the U.S. government in Puerto Rico will continue to be defined by Congress consistent with relevant decisions of the U.S. Supreme Court. For example, in addition to the measures adopted by Congress under the Jones Act in 1917, the U.S. Supreme Court ruled in Balzac v. People of Puerto Rico, 258 U.S. 298 (1922), that basic requirements for protection of fundamental individual rights govern the measures taken by our national government where it exercises sovereignty over persons or property. Thus, under Balzac and later cases life, liberty and property cannot be taken without due process and other fundamental protections which apply any place in the world in which the U.S. government exercises sovereign powers of government over persons under its jurisdiction, including unincorporated territories and other territories or properties owned by the U.S. but not a State of the Union.

However, the fact that the Federal Government is constrained from exercising sovereignty anywhere, including the unincorporated territory of Puerto Rico, in a manner that violates such fundamental rights does not mean that Congress has extended the U.S. Constitution or any part of it fully or permanently to such non-state areas, including Puerto Rico. In its 1957 decision in Reid v. Covert (354 U.S. 1), the Supreme Court stated that the exercise of U.S. sovereignty in unincorporated territories, as construed in the Balzac decision, `* * * involved the power of Congress to provide rules and regulations to govern temporarily territories with wholly dissimilar traditions and institutions * * *’ [emphasis added].

As the Supreme Court stated in Balzac, for the purpose of determining where U.S. sovereignty, nationality and citizenship has been extended permanently and irrevocably, `It is locality that is determinative of the application of the Constitution. * * *’ Unlike the States, unincorporated territories are not localities to which the Constitution has been extended permanently, nor has permanent union, permanent U.S. nationality or equal citizenship been established in such territories. Unless and until Congress extends the U.S. Constitution fully, this will be the condition of Puerto Rico’s status.

That is why even U.S. citizens born in a State, whose rights and status are protected by the 14th Amendment of the U.S. Constitution, lose the ability to enjoy equal legal and political rights when they go to reside in an unincorporated territory. As soon as a person with full Constitutional U.S. nationality and citizenship in the States of the Union establishes legal residence in Puerto Rico (see, 48 U.S.C. 733a), that person joins the ranks of the disenfranchised residents of the territory, and no longer has the same civil, legal or political rights under Federal law as citizens living in those territories and commonwealths which have been fully incorporated into the Union as States along with the original 13

States.

It has been recognized that Congress has broad discretion in making rules and regulations for the unincorporated territories, which measures must be promulgated and implemented in a manner which does not abuse personal rights of due process and equal protection. However, in relation to self-

determination for Puerto Rico it is important to note that the fundamental rights requirement of Balzac and other cases does not preclude Congress from altering the political status of the territory through the appropriate U.S. Constitutional processes consistent with due process and equal protection principles.

U.S. v. Sanchez, 992 F.2d 1143 (1993). At this time no one expects the U.S. Congress to act arbitrarily or unilaterally with respect to status for Puerto Rico. However, an informed self-determination process requires that Congress and the people of Puerto Rico understand that current policy and statutory provisions may change in time, while fundamental Constitutional powers do not. It is impossible to predict what conditions will develop in the future or what measures Congress would determine necessary to promote the national interest if the status of Puerto Rico remains subject to the discretion of Congress under the Territorial Clause. Puerto Rico’s `Commonwealth’ status as a territory under Federal law The current `Commonwealth of Puerto Rico’ structure for local self-government was established through an exercise of the authority of Congress under the Territorial Clause (Article IV, Section 3, Clause 2) of the U.S. Constitution, pursuant to which the process for approval of a local constitution was prescribed and the current Puerto Rico Federal Relations Act was enacted. (Public Law 81-600, July 3, 1950, c. 446, 64 State. 319; codified at 48 U.S.C. 731 et seq.).

Public Law 81-600 authorized the process for democratically instituting a local constitutional government in Puerto Rico. The process prescribed by Congress included authorization for the people of Puerto Rico to organize a government under a constitution approved by the voters. Congressional amendment and conditional approval of the locally-promulgated constitution also was an element of the process, as was acceptance of the Congressionally-determined amendments by the Puerto Rican constitutional convention. This method of establishing a local government charter with consent of both the people and Congress is the basis for the language in Section 1 of Public Law 81-600 (48 U.S.C. 731b) describing the process as being in the `nature of a compact’ based on recognition of the `principle of consent.’

The subject matter of Public Law 81-600 was limited to organization of a local government as authorized by Congress under the Territorial Clause, and the very existence–as well as the actions of-the local government are subject to the supremacy of the Federal Constitution and laws passed by

Congress. Thus, the authority and powers of the constitutional government established under the Public Law 81-600 process are a creation of Federal law, and the approval of the local constitution by the people constitutes their consent to the legal framework defined in Federal law for a form of self-

government over internal affairs and administration.

Although Congress presumably would include some procedure which recognizes the principle of self-determination in changing the structure for local self-government in the future, the existing statutory authority for the current `commonwealth’ structure can be rescinded by Congress under the same Territorial Clause power exercised to create it in the first place. Public Law 81-600 merely revises the previously enacted territorial organic act adopted by Congress in the 1917 Jones Act, and changes the name to the `Puerto Rico Federal Relations Act’ (PRFRA).

This analysis is confirmed by the legislative history of PRFRA (H. Rept. 2275), which states: The bill under consideration would not change Puerto Rico’s fundamental political, social, and economic relationship to the United States. Those sections of the Organic Act of Puerto Rico pertaining to the political, social, and economic relationship of the United States and Puerto Rico concerning such matters as the applicability of United States laws, customs, internal revenue, Federal judicial jurisdiction in Puerto Rico, Puerto Rican representation by a Resident Commissioner, etc., would remain in force and effect, and upon enactment would be referred to as the Puerto Rican Federal Relations Act.

The sections of the organic act which Section 5 of the bill would repeal are the provisions of the act concerned primarily with the organization of the local executive, legislative, and judicial branches of the government of Puerto Rico and other matters of purely local concern.

Based upon the present status of Puerto Rico under Public Law 81-600, the Federal courts have ruled that for purposes of U.S. law this arrangement for local territorial government has not changed Puerto Rico’s status as an unincorporated territory subject to the plenary authority of Congress under the Territorial Clause; that the right to due process and equal protection of the law applies to Puerto Rico, but this does not include equal enfranchisement in the political process or equal rights and benefits under Federal law as available to citizens residing in the States; that the authority of the Government of the Commonwealth of Puerto Rico is limited to purely local affairs not governed by provisions of the Federal Constitution and Federal laws applicable to Puerto Rico; and that the establishment of local constitutional self-government with the consent of the people was authorized through an exercise of Congressional discretion under the Territorial Clause which is not binding on a future Congress. Harris v. Rosario, 446 U.S. 651 (1980); Examining Board v. Flores de Otero, 426

U.S. 572, 81-600 (1976); Rodriguez v. Popular Democratic Party, 457 U.S. 1 (1982); U.S. v. Sanchez,

992 F.2d 1143 (1993). Legal nature of statutory citizenship.

The statutory United States citizenship of persons born in Puerto Rico was first extended to Puerto Rico by Congress under the Jones Act of 1917, and continues under 8 U.S.C. 1402 during the current period in which the territory has a commonwealth structure of local government. It is important to note that adoption of the local constitution in 1952 pursuant to Public Law 81-600 did not alter the allocation of Constitutional authority nor change the state of U.S. law regarding the citizenship status of residents of the territory. While the U.S. citizenship of persons born in Puerto Rico is expressly recognized in the local constitution, the current citizenship of persons born in the territory is not created, defined or guaranteed by the local constitution or the commonwealth structure of local self-

government. Rather, the current U.S. citizenship of persons born in Puerto Rico is created and defined by Congress in the exercise of its Territorial Clause power and in implementation of Article IX of the Treaty of Paris.

In the exercise of its authority and responsibility toward Puerto Rico Congress has determined to define persons born in Puerto Rico as U.S. citizens subject to the laws of the U.S. regulating U.S. nationality and citizenship. Thus, the citizenship of such persons is as set forth in 8 U.S.C. 1402, which is part of the immigration and nationality law of the United States approved by Congress in the exercise of its authority under Article I, Section 8 of the U.S. Constitution.

The earlier citizenship provisions of the Foraker Act and Jones Act cited above have been superseded by 8 U.S.C. 1402. For example, a Congressional Research Service (CRS) legal analysis in 1990 confirmed that establishment of separate Puerto Rican sovereignty would appear to provide the legal basis for Congress to withdraw statutory citizenship without violating due process. See, Legal Memorandum of John H. Killian, Senior Specialist, American Constitutional Law, CRS, American Law Division, November 15, 1990.

However, rather than automatic termination in every case of the statutory U.S. citizenship of those born in Puerto Rico in the event that the unincorporated territory status of Puerto Rico is resolved in favor of separate sovereignty, on an individual basis persons already enjoying statutory

U.S. citizenship rights will be able to retain that status for life by election or entitlement, as provided by Congress. Thus, in a separate sovereignty scenario U.S. nationality and citizenship would no longer be conferred on persons born in Puerto Rico as of the date U.S. sovereignty ends, or perhaps even earlier during the transition period. Only those persons who acquired U.S. nationality and citizenship under

the Treaty of Paris and statutes implementing its provisions during the territorial period would be able to elect to retain that status for life.

The Bellei case cited above establishes that Congress can place conditions precedent or subsequent on such statutory citizenship. To ensure the successful succession of state to nationhood for Puerto Rico and avoid the impairment of U.S. and Puerto Rican sovereignty that would inevitably result from a grant of mass dual citizenship, the Committee expects Congress to include in any status legislation for Puerto Rico the provisions in H.R. 856 which end continued statutory U.S. citizenship based on birth in Puerto Rico during the territorial (transition?) period upon acquisition of any other citizenship, including that of Puerto Rico. This approach would not prevent dual citizenship on an individual case-by-case basis if the U.S. citizenship of the person was acquired on a legal basis other than birth in Puerto Rico or a relationship to a person whose U.S. citizenship is based on birth in the territory. It will, however, prevent conversion of the current statutory U.S. citizenship into automatic dual citizenship as a result of a change of status to separate sovereignty. Puerto Rico’s international legal status

The foregoing makes it clear that to the extent the process for approval of the new constitution by the people of Puerto Rico and Congress in 1952 was `in the nature of a compact,’ its purpose and scope was to establish a local government of limited authority subject to the supremacy of the Federal Constitution and laws.

The notion that the actions and statements of diplomatic representatives in the United Nations (U.N.) characterizing this new constitutional status for purposes of the U.N. decolonization process somehow expanded the legal effect beyond the clear intent of Congress is not supported by the formal measures adopted by the U.N. in this matter. To understand the international dimension of Puerto Rico’s status, a review of the relevant international instruments and the U.N. record regarding Puerto Rico is necessary.

As noted above with respect to Puerto Rico’s status under U.S. domestic law, the Foraker Act of 1900, the Jones Act of 1917 and Public Law 81-600 each constitute measures to implement Article IX of the Treaty of Paris adopted by Congress in the exercise of its plenary authority over unincorporated territories under the Territorial Clause. However, the Treaty of Paris no longer is the only relevant international agreement regarding the status of Puerto Rico to which the U.S. is a party.

Specifically, after the United States became a party to the U.N. Charter, Puerto Rico was classified as a non-self-governing area under Chapter XI of the Charter, `Declaration Regarding NonSelf-

Governing Territories.’ As such, the U.S. was designated to be a responsible administering power

obligated under Chapter XI of the Charter to adhere to U.N. decolonization procedures with respect to Puerto Rico. This included the specific requirement to transmit reports to the U.N. regarding conditions in the territory under Article 73(e) of Chapter XI of the Charter.

In 1953 the U.S. informed the U.N. that it would cease to transmit information regarding Puerto Rico pursuant to Article 73(e) of the Charter based upon establishment of local constitutional government in Puerto Rico under Public Law 81-600. See, `Memorandum by the Government of the United States of America Concerning the Cessation of Transmission of Information Under Article 73(e) of the Charter with regard to the Commonwealth of Puerto Rico.’ (Appendix A).

Based on that communication from the United States, on September 27, 1953, the General Assembly of the United Nations, by a vote of 22 to 18 with 19 abstentions, adopted Resolution 748 (VIII), accepting the U.S. decision to cease transmission of reports regarding Puerto Rico. The formal United States notification to the U.N. that reporting on Puerto Rico would cease was based on the detailed memorandum to the U.N. Secretary-General which put the Members of the U.N. on notice that, among other things, the new constitutional arrangements in Puerto Rico were limited to `internal affairs and administration’ subject to the applicable provisions of the U.S. Constitution, that the new local self-government would be administered consistent with the Federal structure of government in the U.S., and that the precise legal nature of the relationship and Puerto Rico’s status was subject to judicial interpretation in the U.S. courts.

Thus, those who suggest that U.S. diplomats overstated the degree of self-government achieved under the Constitution to get the U.N. to go along may be partially right, but that is why countries submit written statements to clarify ambiguities and set the record straight. The formal, written communication which notified the U.N. of the U.S. position clearly and expressly limited the scope of constitutional self-government to local affairs and required compatibility with the Federal Constitution, including judicial interpretation of the relationship by the Federal courts.

In this respect, it is correct to conclude the United States told the truth to the U.N. in 1953.

The following critical elements of Resolution 748 reveal that while there may have been a meeting of the minds between the U.N. and the United States as to the result of Resolution 748 for the international purposes of the world body, the tension created between the U.S. Constitutional process for administering non-state areas under the Territorial Clause and the terms of reference employed by the U.N. in the resolution would contribute to decades of ambiguity which has been actively exploited in the debate between local political parties in Puerto Rico. The failure of Congress to more actively seek to resolve these ambiguities and the overall political status issue also has contributed to the confusion related to the non-binding but politically-relevant U.N. measures adopted in 1953.

The most critical elements of Resolution 748 include the following passages: The General Assembly * * * Bearing in mind the competence of the General Assembly to decide whether a NonSelf-

Governing Territory has or has not attained a full measure of self-government * * * Recognizes that the people of the Commonwealth of Puerto Rico, by expressing their will in a free and democratic way, have achieved a new constitutional status * * * Expresses the opinion that it stems from the documentation provided that the association of the Commonwealth of Puerto Rico with the United States has been established as a mutually agreed association * * * Recognizes that, in the framework of their Constitution and of the compact agreed upon with the United States of America, the people of the Commonwealth of Puerto Rico have been invested with the attributes of political sovereignty which clearly identify the status of the self-government attained by the Puerto Rican people as that of an autonomous political entity. * * *

The meaning and significance of this language from Resolution 748 must be understood in the context of Resolution 742 (VIII), also adopted by the General Assembly on September 27, 1953. That general resolution is entitled `Factors which should be taken into account in deciding whether a Territory is or is not a Territory whose people have not yet attained a full measure of self-government.’ Resolution 742 establishes the criteria for the General Assembly to determine `whether any Territory, due to changes in its Constitutional status, is or is no longer within the scope of Chapter XI of the Charter, in order that, in view of the documentation provided * * * a decision may be taken by the General Assembly on the continuation or cessation of the transmission of information required by Chapter XI of the Charter.’ In prescribing the conditions which provide a basis for, inter alia, cessation of reporting under Article 73(e), the provisions of the resolution regarding association between a territory and an administering power include the following statement of criteria:

The General Assembly * * * Considers that the manner in which Territories * * * can become fully self-governing is primarily through the attainment of independence, although it is recognized that self-government also can be achieved by association with another State * * * if this is done freely and on the basis of absolute equality * * * and the freedom of the population of a Territory which has associated itself with the metropolitan country to modify at any time this status through the expression on their will * * * Association by virtue of a treaty or bilateral agreement affecting the status of the Territory, taking into account (i) whether the Constitutional guarantees extend equally to the associated Territory, (ii) whether there are powers in certain matters Constitutionally reserved * * * to the central authority, and (iii) whether there is provision for the participation of the Territory on a basis of equality in any changes in the Constitutional system of the State * * * Representation without discrimination in the central legislative organs on the same basis as other inhabitants and regions * * *

Citizenship without discrimination on the same basis as other inhabitants * * * Local self-government of the same scope and under the same conditions as enjoyed by other parts of the country.

As the U.S. domestic legislation which determined the nature of the relationship between the

U.S. and Puerto Rico, Public Law 81-600 authorized the people of Puerto Rico to approve a constitution through a process which would be `in the nature of a compact.’ However, the `compact’ was for the creation of a form of local constitutional self-government, which represented progress toward, but did not fulfill or satisfy, U.N. criteria for full self-government constituting completion of the decolonization process. The conditions supporting this conclusion include the statutory citizenship status of the inhabitants of Puerto Rico which is not equal, full, permanent, irrevocable citizenship protected by the 14th Amendment of the U.S. Constitution, the lack of voting representation in Congress as the legislative body which determines the form of government and laws under which the people of the territory live, the lack of voting rights in elections for President and Vice President, rights of equal protection and due process which have a different application and effect in the territory than in the rest of the Nation, and retention by Congress of the authority (unimpaired by the non-self-executing undertakings regarding the right of self-determination) to determine the disposition of the territory.

Again, it is ultimately consistent with the right of self-determination to terminate an association between metropolitan power and a territory in favor of independence, because independence is by definition consistent with the right of self-determination. Thus, if mutual agreement on the terms of continued association, integration or separate sovereignty cannot be achieved, succession to independence is an option.

It can be argued that the discrepancy between the subsequent interpretation of information provided to the U.N. by the U.S. in 1953 about Puerto Rico’s new constitutional status and the reality of Puerto Rico’s status under the U.S. Federal political system has been the result of a misunderstanding. For example, some may have been unfamiliar with the Territorial Clause regime under the U.S. Constitutional process.

An alternative view is that the close vote on approval of a somewhat equivocal resolution represented a practical diplomatic accommodation of U.S. insistence in 1953 that Puerto Rico’s status should not be subject to U.N. oversight. Neither of these views, however, alter the result.

More important than such speculation, Section 9 of Resolution 748 reveals the manner in which the U.N. chose to address the fact that adoption of local constitutional self-government began but in and of itself did not necessarily complete the decolonization process for Puerto Rico. This most important provision states that the General Assembly: Expresses its assurance that, in accordance with

the spirit of the present resolution, the ideal embodied in the Charter of the United Nations, the traditions of the people of the United States of America and the political advancement attained by the people of Puerto Rico, due regard will be paid to the will of both the Puerto Rican and American peoples in the conduct of their relations under their present legal statute, and also in the eventuality that either of the parties to the mutually agreed association may desire any change in the terms of this association.

Consistent with this language in Resolution 748, the U.S. repeatedly has confirmed its policy that in addition to the current status and statehood, independence is available to Puerto Rico at any time that is the preference of the people. Although the commonwealth relationship has been accurately characterized as less than full self-government, and criticized in the U.N. over the years on that basis, because it was established and maintained with the consent of the people the U.S. has been able to defend and sustain its policy simply by pointing out that independence is available should the will of the people to retain the present association change.

In this context, the U.S. assertion in the memorandum circulated to the U.N. in 1953 that Puerto Rico had achieved a `full measure’ of self-government under its new constitutional status as of 1952 is best understood as an expression that the new relationship gave the people the ability to exercise self-determination and achieve independence at any time, or any other relationship to the U.S. to which agreement might be reached. That, in essence, is what Section 9 of Resolution 748 stated.

H.R. 856 will ensure legitimacy of the status of Puerto Rico by making fully meaningful self-

determination possible for the first time in a century, and thereby make a permanent solution to the status question possible. In this connection, the Committee notes that on December 15, 1960, the General Assembly adopted Resolution 1541 (XV), which established `Principles which should guide Members is determining whether or not an obligation exists to transmit the information called for under Article 73 of the Charter.’ This resolution clarifies U.N. standards for determining when the nonself-

governing status of a territory has been terminated in favor of full self-government, and defines the options available to territories seeking full self-government. On that basis some have suggested that Puerto Rico should be reinscribed on the U.N. list of non-self-governing areas. Of course, neither the U.S. nor the U.N. sought to apply Resolution 1541 retroactively to Puerto Rico and revisit the question of its status in 1960. Rather, the U.N. continues to accept as it did in 1953 that Puerto Rico’s status is consistent with the right of self-determination and independence because the people have the means to achieve independence through self-determination if that is their will. This is based on: (i) the consent of the people to the current Constitutional association under U.S. sovereignty; (ii) the ability of both the U.S. and Puerto Rico to seek changes to

the current arrangements through self-determination in the future according to Section 9 of Resolution 748; and (iii) the U.S. position since 1953 that the U.S. will grant full independence to Puerto Rico any time it wants.

Since 1960, the United States has acted consistent with Resolution 1541 in its dealings with those U.S. territories still on the U.N. list of areas on which the U.S. still reports to the U.N. For example, the U.S. ended the trusteeship in the Pacific Islands on the basis of free association in accordance with Resolution 1541 (See, Public Law 99-239).

Thus, while Resolution 1541 did not apply to Puerto Rico in 1953 because it was not adopted until 1960, if the U.S. and Puerto Rico now determine to change the current relationship pursuant to Section 9 of Resolution 748, the U.S. will act in accordance with the principles of Resolution 1541. This is not because it is a binding or self-executing document, but because the U.S. has found it to be consistent with its commitments under the U.N. Charter and the U.S. national interest to do so in dealing with all the unincorporated territories under U.S. sovereignty, as well in the case of the U.N. trusteeship.

While Puerto Rico’s current status does not meet the criteria for any of the options for full self-

government under Resolution 1541, H.R. 856 defines a process which could lead to establishment of full self-government consistent with the three status alternatives which have been formally recognized by the United States in consideration of Resolution 1541: full integration on the basis of equality, free association based on separate sovereignty, or absolute national independence.

As a consequence of how international standards regarding decolonization have evolved since 1953, and in view of how the political branches of the Federal Government and the courts have implemented and interpreted the `compact’ for local self-government under PRFRA, the United States has recognized that Puerto Rico did not achieve full self-government in 1952.

For example, on November 30, 1992, President George Bush issued a memorandum which stated that: On July 25, 1952, as a consequence of steps taken by both the United States Government and the people of Puerto Rico voting in a referendum, a new constitution was promulgated establishing the Commonwealth of Puerto Rico. The Commonwealth structure provides for self-government in respect of internal affairs and administration, subject to relevant portions of the Constitution and laws of the United States. As long as Puerto Rico is a territory, however, the will of its people regarding their political status should be ascertained periodically by means of a general right of referendum. * * *

Similarly, in the 104th Congress, the United States-Puerto Rico Political Status Act, H.R. 3024, was first introduced in the U.S. Congress. See, Appendix III, House Report 104-713, Part 1, pp. 55-56.

That bill and the statement included by its sponsors (including four committee and subcommittee chairmen with jurisdiction and interest in the status of the Puerto Rico) in the Congressional Record are strong evidence of continued U.S. recognition that Puerto Rico’s decolonization process has not been completed as a matter of international or domestic law.

However, it is irrefutable that the United States has provided for an unprecedented level of local self-government in Puerto Rico since 1952. During the past four decades there have been continuing elections conducted pursuant to democratic processes under Puerto Rico law, often resulting in changes in government. Puerto Rico has indeed administered internal affairs and local matters without intrusion by the United States beyond that which is exercised by the Federal Government in the States of the Union. Although Puerto Rico has not yet achieved a permanent political status, given the local self-governance of the territory and the nature of the United States-

Puerto Rico relationship, there is no basis for the United States to resume annual reporting to the U. N. Puerto Rico’s political status and self-determination process: recent developments and current situation

Following a failed attempt by Congress in 1991 to approve legislation to enable the people to exercise the right of self-determination regarding their political status, a plebiscite to enable the residents of Puerto Rico to express their preferences on the status question was conducted by the local government under Puerto Rican law on November 14, 1993. For the first time in almost a century of

U.S. sovereignty, less than a majority of the voters approved the current status of the territory. Indeed, none of the three options on the ballot–independence, commonwealth or statehood-received a majority of votes cast. Controversy ensued after the vote, and still continues, regarding the manner in which the local political parties were allowed–in the absence of status definitions approved by Congress–to define the options on the ballot.

Recognizing that Puerto Rico cannot unilaterally determine its ultimate status within a political framework to which the U.S. also is to be a party in agreement, and that the results of the 1993 plebiscite made further self-determination for Puerto Rico necessary, on January 23, 1997, the Legislature of Puerto Rico adopted Concurrent Resolution 2, requesting the 105th Congress to `* * * respond to the democratic aspirations of the American citizens of Puerto Rico’ by approving legislation to authorize ` * * * a plebiscite sponsored by the Federal Government, which shall be held no later than 1998.’ (Appendix B).

Since, as discussed above, Puerto Rico does not enjoy equal participation or representation in the U.S. political and legal system through which the citizens of the territory are governed, the absence of a democratic majority among the people there in favor of the current commonwealth status as established under Federal law is cause for concern. Among other things, it raises a serious question

regarding the long-term viability of the present commonwealth structure of local self-government for Puerto Rico as an unincorporated territory subject to the authority of Congress.

The United States is the national body politic in which Puerto Rico presently exists, and Puerto Rico’s relationship with the U.S. establishes the current status of the territory internationally and within the U.S. Constitutional and legal system. Thus, the process for approving any new relationship or change of the underlying status involves mutual self-determination by the U.S. as a whole as well as the local body politic composed of U.S. citizens born or residing in Puerto Rico.

Thus, Congress also is an indispensable party in any process for defining the options which will be considered for approval by the voters on behalf of Puerto Rico, and by Congress itself on behalf of the United States. The decision of a majority of the voters not to ratify the current status calls into question the legitimacy of the policy espoused by many in Congress and the Executive Branch to the effect that political leaders in the Federal Government simply should `remain neutral’ and support the right of the people to choose their own status.

That policy, which constitutes failure of the Federal Government adequately to inform the people of the territory as to what status options the U.S. is willing to consider, effectively deprives the residents of the territory of an opportunity for meaningful self-determination. Accordingly, the Legislature of Puerto Rico’s request in Resolution 2 for a Congressionally-sponsored self-

determination process expressly recognized the record which was established regarding the status of Puerto Rico by the Committee on Resources during the 104th Congress. Specifically, the request recognizes the historical importance of the Statement of Principles transmitted by concerned Congressional leaders dated February 29, 1996, responding to a previous request from the Legislature of Puerto Rico to Congress asking for Federally-accepted definitions of status options and self-

determination procedures.

In renewing the request to Congress for a Federally-recognized mutual self-determination process, the newly re-elected Legislature also noted in Resolution 2 that the signatories of the Statement of Principles dated February 29, 1996, had `fulfilled their pledge’ to the people of Puerto Rico by introducing H.R. 3024 in the 104th Congress.

Resolution 2 goes on to note significant bipartisan sponsorship of H.R. 3024, as well as documentation in the record before Congress of strong support by distinguished Members of the Minority party in Congress for the approach to self-determination for Puerto Rico embodied in both

H.R. 3024 and S. 2019–a companion bill in the U.S. Senate. Resolution 2 the Legislature of Puerto Rico also explicitly notes adoption of House Report 104713, Part 1 of which establishes that legitimate self-determination for Puerto Rico requires more than a

one-stage decision-making process, as well as periodic referenda in the event of an inconclusive vote. The Committee on Rules also filed a report on H.R. 3024 (H. Rept. 104-713, Part 2).

Resolution 2 describes all these provisions embodied in H.R. 3024 and its accompanying reports as `well-founded’ ones which represent `substantial progress’ by the 104th Congress toward completion of the decolonization process for Puerto Rico. H.R. 856 as introduced in the 105th Congress on March 3, 1997, represents continuation where the deliberations on H.R. 3024 ended at the close of the 104th Congress. See, Statement of the Hon. Don Young regarding H.R. 4281, September 28, 1996. (Appendix C).

The provisions prescribing self-determination procedures and defining acceptable status options, as explained in House Report 104-713, Part 1, have been modified in some respects as discussed below, but the core elements of the self-determination process contemplated in H.R. 3024 remain central to the structure of H.R. 856. The Committee therefore views House Report 104-713, Part 1, and its appendices as a particularly important and integral part of the record and legislative history which establishes the basis for approval by Congress of H.R. 856.

As this legislation is revised and improved further consistent with its purpose, the Committee will adhere to the underlying understandings and procedure for resolving Puerto Rico’s status expressed in the Statement of Principles dated February 29, 1996, and as embodied in H.R. 3024 and House Report 104-713, Part 1.

The record before the Committee also includes the March 3, 1997, bipartisan request by the Chairman and Ranking Minority Member of the Committee on Resources that each political party in Puerto Rico submit by March 31, 1997, the proposed definition of the status options it endorses for inclusion on the ballot in a referendum under this legislation. (Appendix D). In compliance with that request, the Popular Democratic Party (PDP) submitted a proposed definition of commonwealth, the New Progressive Party (NPP) submitted a proposed definition of statehood, and the Puerto Rico Independence Party (PIP) submitted a proposed definition of separate sovereignty. (Appendix E). The 1993 vote–Why does Congress need to act?

The record now before the Committee strongly suggests that the conflicting and adamantly held views about the meaning of the 1993 plebiscite results, and the controversy which surrounds that process, relates primarily to the fact that the PDP, NPP, and PIP were allowed unilaterally to formulate the definition of `commonwealth,’ `statehood’ and `independence,’ respectively, as those options appeared on the ballot.

The testimony of witnesses and materials presented to the Committee during hearings reveals

that the greatest controversy and debate has been with respect to the definition of `commonwealth’ as adopted by the PDP and presented to the voters in the plebiscite. This no doubt is due in part to the fact that the `commonwealth’ option received the highest number of votes, 48.6 percent, while statehood received 46.3 percent and independence received 4.4 percent.

However, the testimony received by the Committee from the three parties and others concerned also makes it very clear that the focus of attention which the `commonwealth’ definition has received also relates to the contents of that ballot option, for in the case of `commonwealth’ it quite clearly was a conscious decision of PDP leaders to define it as they would like Congress to change and improve it, rather than it actually is at this time.

Even though there also are substantial and controversial issues associated with the questions of how the `statehood’ and `independence’ definitions would be implemented, as discussed below, to a far greater extent than in the case of `commonwealth’ the Constitutional structures and legal nature of those two options are relatively well-defined and well-understood.

While both the `statehood’ and `independence’ definitions were cast in the most favorable light possible and there was some embellishment, the meaning of those options and the choices to be made were fairly clear. It was the `commonwealth’ definition that introduced the most complex, historically unprecedented and Constitutionally uncertain proposals, requiring implementation through measures never before adopted by Congress in the combination or with the effect called for in the 1993 ballot language.

The `commonwealth’ definition in the 1993 vote reasonably, logically, and without prejudice can and should be seen as a bold `have it both ways’ hybrid status option, which is Constitutionally flawed as it purports to combine in one status the primary benefits of both separate sovereignty and statehood, with the primary burdens of neither. Yet, even with this proposal for a new and `enhanced’ formulation of the present Federal-territorial relationship, thought by its authors to be irresistible to the voters, `commonwealth’ was not approved by a majority. This has required the Committee to look very closely at the `commonwealth’ definition and the 1993 plebiscite results.

For example, the ballot definition of the current status in the 1993 political status plebiscite did not inform the voter–or even acknowledge–that at present Puerto Rico is a U.S. territory, or that the `commonwealth’ structure for local constitutional self-government is subject to the supremacy of Federal law as applied to Puerto Rico by Congress in the exercise of its powers under the Constitution.

Thus, instead of confirming the legal nature and political realities of the current status so the voters could make an informed choice, the 1993 ballot description of commonwealth called for

changes in the Puerto Rico-U.S. relationship of a fundamental nature. There seems to be no dispute that if the 1993 ballot had described `commonwealth’ as it is without the changes to enhance it (formulated and included in that definition by the PDP), popular support for that option among those who support the PDP would have been diminished significantly.

This explains why the `commonwealth’ definition in the 1993 plebiscite had as its premise the theory that, as a results of adoption of the local constitution in 1952, the territorial status of Puerto Rico had ended. As a consequence, according to ballot language adopted by the PDP leadership, the status of Puerto Rico was defined as one based on a `bilateral pact that can not be altered except by mutual agreement.’ (See, Committee on Resources Hearing 104-56 p. 210, for text of ballot).

Thus, the PDP definition was predicated on the PDP’s long-standing doctrine that Puerto Rico’s status has been converted into a permanent form of associated autonomous statehood which is unprecedented in the history of U.S. Constitutional federalism. The definition of `commonwealth’ on the 1993 ballot also stated that `commonwealth * * * guarantees * * * irrevocable U.S. citizenship’ (now guaranteed under the U.S. Constitution only to persons born in one of the States of the Union), as well as exemption from taxation under the label `fiscal autonomy,’ and increased Federal social welfare benefits. All the provisions and rights included in the 1993 definition, including the permanency of the current status, would have been binding on Congress in perpetuity, and could not be altered except by mutual consent of both parties.

Although some Members of Congress spoke out before and after the 1993 vote about the internal inconsistencies in the ballot definitions (See, Appendix II, House Report 104-713, Part 1), the 103rd Congress adjourned more than a year after the 1993 plebiscite without breaking its silence regarding the results of that plebiscite.

For that reason, on December 14, 1994, the Legislature of Puerto Rico adopted Resolution 62, expressly requesting the 104th Congress, if it did not `accede’ to the 1993 ballot definitions and resulting vote, to determine `the specific status alternatives’ the United States `is willing to consider,’ and then to state what steps Congress recommends be taken for the people of Puerto Rico to establish for the territory a `process to solve the problem of their political status.’ On October 17, 1995, the Subcommittee on Native American and Insular Affairs, Committee on Resources, and the

Subcommittee on Western Hemisphere, Committee on International Relations, held a joint hearing in Washington, D.C. on the results of the 1993 plebiscite. All political parties were represented in the hearing, and all interested organizations and individuals were allowed to submit written statements for the record.

Based upon the testimony and materials submitted at that hearing, the approach embodied in

H.R. 3024, and now continued in H.R. 856, was developed to enable Congress to define a process of self-determination for Puerto Rico. The events leading to development of this legislation included the formal statement of principles dated February 29, 1996, addressed to the Legislature of Puerto Rico with respect to the subject matter of Concurrent Resolution 62, transmitted by the four chairmen of the committees and subcommittees in the House of Representatives with primary jurisdiction over the status of Puerto Rico. See, Cong. Rec., March 6, 1996, E299-300; Appendix III, House Report 104713, Part 1. After reviewing the testimony from the hearing and examining the record in a very deliberate manner, the Committee determined that the notion of an unalterable bilateral pact espoused by the PDP is predicated on the theory that an implied compact supposedly created in 1952 is mutually binding on Puerto Rico and Congress. Under this theory, the principle of consent recognized in Public Law 81600 with respect to establishment of local constitutional self-government respecting internal affairs supposedly has been elevated onto the plane of government-to-government mutuality. On that basis, it is incorrectly theorized that there is a treaty-like relationship which, again, can be altered only with mutual consent of both governments. Paradoxically, this `bilateral’ relationship is presumed to be permanent and within the U.S. Federal system.

This is an unrealistic and inaccurate rendition of the relationship–based on separate sovereignty, nationality and citizenship–which exists between the U.S. and the Pacific island nations party to the Compact of Free Association which ended the U.S. administered U.N. trusteeship in Micronesia. See, Title II of Public Law 99-239.

While such a free association relationship is available to Puerto Rico if that is the option chosen by the voters, U.S. policy and practice relating to free association as defined in international law is not a status which exists within the U.S. Constitutional system. As an international status, free association is not a model which provides a basis for the assertion that a mutual consent relationship was created between Puerto Rico and the U.S. within the U.S. Constitutional system in 1952.

Indeed, the notion that an unalterable, permanently binding mutual consent political relationship can be instituted under the U.S. Constitution between an unincorporated territory and Congress has been discredited and rejected by the U.S. Supreme Court as already discussed. In addition, the Department of Justice (DOJ) has confirmed that mutual consent provisions are not binding on a future Congress, are not legally enforceable, and must not be used to mislead territorial residents about their political status and legal rights. Specifically, on July 28, 1994, the DOJ Deputy Assistant Attorney General issued a legal opinion which included the following statement about

`bilateral mutuality’ in the case of Puerto Rico: `The Department [of Justice] revisited this issue in the early 1990’s in connection with the Puerto Rico Status Referendum Bill in light of Bowen v. Agencies Opposed to Soc. Sec. Entrapment, 477 U.S. 41 (1986), and concluded that there could not be an enforceable vested right in a political status; hence the mutual consent clauses were ineffective because they would not bind a subsequent Congress.’ Dept. of Justice Memo, footnote 2, p. 2; See, Committee on Resources Hearing 104-56, p. 312.

The DOJ memo also concludes that a ballot definition of `commonwealth’ based on the idea of an unalterable bilateral pact with mutual consent at the foundation `would be misleading,’ and that `honesty and fair dealing forbid the inclusion of such illusory and deceptive provisions. * * *’

The document goes on to state that unalterable mutual consent pacts `raise serious constitutional issues and are legally unenforceable.’ Status definitions based on the notion of unalterable mutual consent pact should not be on a plebiscite ballot `unless their unenforceability (or precatory nature) is clearly stated in the document itself.’

The DOJ memo offers, as a sympathetic exercise of discretionary authority by Federal officials rather than as of right, to honor as existing mutual consent provisions (such as that in the Northern Mariana Islands Covenant) even though `unenforceable’ as a matter of law. Congress should not indulge such discretionary disposition of the political status and civil rights of U.S. citizens in the territories. Instead Congress must create a process that defines real status options under which the people of Puerto Rico will have real rights that are enforceable.

Given U.S. notification to the U.N. in 1953 that the nature of the `commonwealth’ would be `as may be interpreted by judicial decision,’ it is significant that in 1980 the U.S. Supreme Court did not adopt the `free association’ theory of Puerto Rico’s status, and ruled instead that Puerto Rico remains an unincorporated territory subject to the Territorial Clause. Harris v. Rosario, 446 U.S. 651 (1980).

Recognizing Congress has delegated the powers of local self-government over internal affairs and administration to a constitutional government which serves the same function in the territory that a State government serves in the 50 States of the Union, the Supreme Court also has recognized that in such internal matters as qualifications to serve in the local legislature Puerto Rico functions as an `autonomous political entity’ and `like a state’ subject to the supremacy of the Federal Constitution. Rodriguez v. Popular Democratic Party, 457 U.S. 1 (1982).

However, in respect of the relationship between the territory and the Federal Government, the Harris v. Rosario decision is the definitive ruling establishing that the 1952 process `in the nature of a compact’ for adopting the local constitution did not alter Puerto Rico’s status as an unincorporated territory subject to the Territorial Clause power of Congress. If change is the will of the Puerto Rican

people concerned and Congress, as the 1993 plebiscite would seem to suggest, that can be accomplished through a process such as the one prescribed by H.R. 856.

Those who advocate the `have-it-both-ways’ legal theory and the revisionist version of `commonwealth’ hold out the unattainable myth that Puerto Rico can somehow enjoy in perpetuity the most precious American rights of membership in the Union and guaranteed citizenship, without having to cast its lot or fully share risks and burdens with the rest of the American political family. But this expansive and unconstitutional `commonwealth’ mythology cannot withstand scrutiny any longer.

While sometimes confusing the issue by trying to accommodate those on all sides of this matter, in relevant formal measures the Congress, the Federal courts and the last several Presidents have exercised their Constitutional powers with respect to Puerto Rico in a manner consistent with applicability of the Territorial Clause, continued unincorporated territory status and local self-

government limited to internal affairs. See, U.S. v Sanchez, 992 F.2d 1143 (1993).

Supporters of the extra-constitutional theory of `commonwealth’ explain this away as merely demonstrating the need to perfect free association with permanent union and common citizenship which they insist is the status the U.S. and U.N. recognized in 1953. For example, supporters of the expansive theory of `commonwealth’ often cite the case of U.S. v. Quinones, 758 F.2d 40, (1st Cir. 1985), because dictum in that opinion adopted some of the nomenclature of the `commonwealth’ doctrine.

However, the DOJ has pointed out that reliance on this dictum to advance the expansive and revisionist theory of `commonwealth’ is contradicted by the actual ruling of the court in that case, which upheld a Federal law unilaterally altering the 1952 constitution and PRFRA without the consent of Puerto Rico. See, GAO/HRD-91-18, The U.S. Constitution and the Insular Areas, April 12, 1991; Letter to GAO from Assistant Attorney General of the United States, Appendix VIII, House Report 104-713, Part 1.

In formulating H.R. 3024 in the 104th Congress so that these complex issues could be sorted out, the Committee originally presented a two part ballot in an attempt to distinguish between the options for full self-government and continuation of a less than fully self-governing status, and to clarify the legal nature of the present commonwealth structure for self-government under a local constitution subject to the Federal Constitutional process.

Because this good-faith attempt to be truthful with the people of Puerto Rico was unfortunately portrayed by many in Puerto Rico as `unfair’ and the matter became politicized, the Committee agreed to a one part ballot with three options presented side-by-side–commonwealth, independence and statehood. This revision to H.R. 3024 is reflected in H.R. 856.

To avoid any suggestions that the Committee is being unfair in formulating a definition of `commonwealth’ for the ballot provisions of this legislation, at the time H.R. 856 was introduced the Committee invited all three political parties to submit the definitions of the status option each endorses for consideration by the Committee. The Committee agreed that each such proposal would be submitted for a vote before the Committee if the concerned political party so desired.

At the Committee meeting on May 21, 1997, to consider H.R. 856, the Committee Chairman offered an amendment in the nature of a substitute to H.R. 856 which incorporated as much of the language from the proposals made by the local political parties as the Chairman believed to be consistent with truth, accuracy and fairness to the people of Puerto Rico in light of their aspirations for an informed act of self-determination. The amendment offered by the Chairman includes changes to the definitions of all three status options based on consultations with and/or communications and proposals from the Administration, the Minority and the three political parties.

The separate sovereignty definition contains many aspects of the independence party’s proposal, including free trade, free transit, and the future status of the U.S. military status in Puerto Rico. The leadership of the independence and statehood parties informed the Committee that they were able to accept the definitions proposed in the Chairman’s amendment.

Only the commonwealth party was unable to support the definition as proposed to and ultimately adopted by the Committee, which includes specific aspects of the commonwealth party’s definition of `commonwealth’ regarding Puerto Rico constitutional self-government, United States nationality and citizenship and rights, privileges, and immunities, and levels of Federal benefits and taxes extended to Puerto Rico. Thus, it is necessary in this report to further analyze the commonwealth party’s definition of `commonwealth.’ New `commonwealth’ proposal

In response to the March 3, 1997, invitation of the Committee, on April 9, 1997, the PDP submitted a letter memorializing the new `commonwealth’ definition presented at the March 19, 1997, hearing in Washington, D.C., including a mechanism for Congress to consider proposals by Puerto Rico to improve and reform the relationship in the future.

Of course, under the current status, improvements to the `commonwealth’ relationship can be proposed to Congress at any time. Thus, there is a strong argument to be made that to determine the ultimate status of the island the choices should not be based on what each political party hopes or proposes the status might become once a particular status is approved, but to the greatest extent possible must be made based on definitions of the Constitutional structures through which the future of

Puerto Rico will be determined if a particular status is approved by Congress and the people.

In other words, rather than containing primarily proposals for beneficial implementing provisions that may or may not be approved by Congress in the future under a particular status option, the status definitions should inform the voter primarily about the structural relationship which will exists between the U.S. and Puerto Rico under each status alternative. This better informs the people of the Constitutional structure through which their proposals for beneficial implementation will be approved or disapproved by Congress. As noted throughout this report, Puerto Rico is an unincorporated territory of the U.S. with internal self-government under a local constitution approved by the people. This form of internal self-government is subject to the supremacy of the Constitution and laws of the United States as made applicable by Congress in the exercise of its authority and responsibility for territories under the Territorial Clause of the Constitution.

This is the structure within which the relationship can be improved as long as commonwealth status as a territory continues. Yet, those who support continuation of the current Federal-territorial relationship–denominated under both Federal law and the local constitution as the Commonwealth of Puerto Rico–have advised Congress that any definition of the current status as `territorial’ is unacceptable to the supporters of the `commonwealth’ status.

Therefore, commonwealth leaders proposed that Congress offer that option to the voters in an `enhanced’ form based on the aspirations of their party. The position of these party leaders is that failure to include their proposals for future changes in Federal law and policy effectively would exclude them and their supporters from the self-determination process. On that basis it is proposed by party leaders who have submitted the new `commonwealth’ definition to the Committee that this option be included on the ballot under H.R. 856 on terms which include the power of nullification over Federal law; conversion of the current permissive statutory citizenship into the same permanent citizenship as persons born in the States of the Union; extension to the unincorporated territory of the same rights, benefits and privileges under all Federal laws as are applicable in the States of the Union; and exemption from Federal income taxation but full Federal programs and services as in the States, with an undefined `equitable contribution.’ All of this, like the 1993 definition of `commonwealth,’ would be guaranteed by the Constitution and binding for all time on Congress.

The Committee notes that the local political party in Puerto Rico which is identified with commonwealth has taken the position that the definition in H.R. 856 of the current commonwealth structure as it actually exists under Federal law is unacceptable, because it does not reflect the enhanced version of that status proposed by that party. While the local political parties have an important role in the self-determination process, no party has a monopoly over the definition which

Congress is willing and able to recognize. There is no right of `mutual consent’ to the ballot definition of any status. In addition to seeking a legitimate process for the voters, it is in the U.S. national interest for Congress to be able to interpret the results of a referendum under this legislation. Accurate definitions as determined by Congress are essential to meaningful results.

As already noted, the definitions of `independence’ and `statehood’ in H.R. 856 as approved by the Committee are different from the versions submitted by and requested by the local political parties which endorse those options. Thus, the Committee has demonstrated its resolve to exercise reason and judgment about what definitions will fairly and fully inform the voters of the structure of each available status option.

Instead of presenting Congress with the same version of the `commonwealth’ definition formulated for the 1993 ballot, the leaders of that party have chosen in 1997 simply to revive the `unalterable bilateral pact’ in the form of the new `commonwealth’ package submitted to the Committee on Resources in response to its invitation to submit a definition.

As proposed, this relationship would somehow be beyond the reach of Congressional legislative authority, supposedly immune from alteration without Puerto Rico’s `mutual consent.’ Under this proposal, Puerto Rico would be neither a State, nor a territory, but would exist as a category by itself.

This new `commonwealth’ package is not new at all. During the last Congress, the PDP President wrote to the Chairman of the Committee on Resources on May 31, 1996, stating the `commonwealth’ definition in the 1993 plebiscite was derived from the new `commonwealth’ definition `approved’ by the House in 1990 in the form of H.R. 4765. The 1997 PDP proposal for new `commonwealth’ is virtually the same as the 1990 version referred to in the PDP letter to Chairman Young. However, the actual language of the new `commonwealth’ proposal which now has been offered was not included in the bill approved by the House in 1990. Instead, H.R. 4765 contained the option of a `New Commonwealth Status’ without defining its meaning. Apart from the bill itself, the new `commonwealth’ definition was included in House Report 101-790, Part 1, accompanying H.R. 4765, along with definitions of `statehood’ and `independence’ submitted by the political parties concerned, not as a statement of Congressional policy, but as expressions of the aspirations of those political parties. Furthermore, the House Report expressly commented that the PDP proposals included in the report would be considered, but that did not `obligate this Committee or its counterpart Senate committee to necessarily incorporate the * * * description * * * in the legislation.’ That means the 1990 bill did not commit Congress to any version of `commonwealth.’

Also, under the 1990 House bill the present status would have been continued if there was a

majority vote for `None of the above.’ In this way, definition of the current status as it is was avoided. Conclusion

H.R. 856 will provide the first Congressionally-sponsored process leading to full self-

government for Puerto Rico since United States sovereignty was established nearly 100 years ago. The people of Puerto Rico can achieve full self-government through separate sovereignty or statehood, if a majority are ready for change, or continue the current commonwealth structure for local self-

government as a territory. The United States-Puerto Rico Political Status Act will enable Congress to ensure that U.S. sovereignty continues to be exercised in Puerto Rico in a manner consistent with the national interest and the principle of self-determination. COMMITTEE ACTION H.R. 856 was introduced on February 27, 1997, Congressman Don Young (R-AK), Chairman of the Committee on Resources. A total of 87 Members are cosponsoring the bill, including the Speaker of the House Newt Gingrich (R-GA), and Resident Commissioner Carlos A. Romero-Barcelo (D-PR). Three Full Committee hearings were held on the bill: March 19, 1997, in Washington D.C.; April 19, 1997, in San Juan, Puerto Rico; and April 21, 1997, in Mayaguez, Puerto Rico. The Administration testified at the Washington hearing with general observations of the bill and expressing support of the process and objectives of the legislation. Over 50 witnesses appeared at the hearings including top government officials from the legislative and executive branches of the government of Puerto Rico, a number of mayors from the Puerto Rico municipal governments, and various other leaders and individuals evenly representing the three status options of commonwealth, separate sovereignty (including outright independence and separate sovereignty in free association), and statehood. On May 21, 1997, the Committee met to mark up H.R. 856. Three amendments were offered. First, Chairman Don Young offered an amendment in the nature of a substitute with changes to 40 provisions. Although the bulk of the changes were technical in nature, the primary changes streamlined the three-stage process by eliminating two presidential proclamations, changing the duration of the transition stage from a minimum of 10 years to not more than 10 years, and specifying that the proposed implementation legislation from the President is in the nature of a Joint Resolution recommending the effective date of implementation within the transition period.

Other changes were made to all three status definitions of `commonwealth,’ `separate sovereignty,’ and `statehood’ to clarify the characteristics associated with each status. In addition, the requirement for periodic referenda in the event there is no majority for separate sovereignty or statehood was modified from once every four years, to not less than once every ten years. Another

change required the transition plan under a majority vote for statehood to include the effective date in which the Constitution is to have the same force and effect as in the several States.

To the Young amendment, Congressman George Miller (D-CA) offered an amendment substituting the `commonwealth’ definition with the `commonwealth’ definition submitted by the Puerto Rico political party advocating commonwealth. The amendment failed on a roll call vote of 1032, as follows: Offset Folios 31 Insert Here 001

Also to the Young amendment, Resident Commissioner Carlos Romero-Barcelo offered an en bloc amendment shifting a separate sovereignty measure from the transition stage to the ballot definition as requested by the Puerto Rico party advocating separate sovereignty, and clarifying the transition plan is in fact to reflect the status which received the majority in the initial decision stage vote. The amendment passed on voice vote. The Young amendment in the nature of a substitute, as amended, was adopted by voice vote and the bill was favorably reported to the House of Representatives by a 44 to 1 vote, as follows: Offset Folios 33 Insert Here 001 SECTION-BY-SECTION ANALYSIS Section 1. Short title; table of contents

This provision contains the Short Title by which the bill will be known once it becomes an Act, as well as the Table of Contents.

Section 2. Findings

This Section contains the findings of Congress with respect to political status and self-

determination in the case of Puerto Rico, which are self-explanatory in most respects, especially when read in the context of the historical and legal materials reviewed in the first part of this report, including Resolution 2, adopted by the Legislature of Puerto Rico on January 23, 1997. To ensure that important matters of interpretation will not be made without adequate certainty once this legislation has been enacted, material included by the Committee to reflect its understandings and intentions with regard to this bill is presented under the first part of the report, and as discussed below.

Finding 1. This finding recognizes that the United States exercises sovereignty with respect to Puerto Rico pursuant to the Treaty of Paris (30 Stat. 1754), Article IX of which established that the inhabitants of the territory not eligible for or electing to retain Spanish nationality thereupon acquired the nationality of the United States of America, and consequently owed allegiance to and enjoyed the protection of this Nation.

Under Article IX of the Treaty, which continues to have the full force and effect of United States law, it is provided that the `civil rights and political status of the native inhabitants’ of Puerto

Rico `shall be determined by the Congress.’ Based upon the full sovereignty of the United States in Puerto Rico as so established, all Federal authority and responsibility with respect to Puerto Rico, including that set forth in Article IX of the Treaty of Paris, is are carried out in accordance with laws of the United States enacted by Congress in the exercise of its powers under the Territorial Clause of the

U.S. Constitution. Finding 2. Article IX of the Treaty of Paris provided that the inhabitants of the territory of Puerto Rico were held to have `nationality of the territory.’ In Gonzales v. Williams (192 U.S. 1 (1904)), the U.S. Supreme Court stated with respect to the status of Puerto Rico that under the terms of the treaty of cession the `nationality of the island became American.’ In Gonzales the court ruled that under the terms of the treaty the inhabitants of Puerto Rico had no foreign or separate nationality, were not `aliens’ under the immigration act of 1891, and were under the `protection’ of the United States.

In an exercise of its Territorial Clause authority, Congress implemented Article IX of the Treaty of Paris by conferring the status of `citizens of Puerto Rico’ on the inhabitants of the territory under Section 7 of the Foraker Act of 1900, and prescribing the rights of persons having that status. It is clear that the umbrella of U.S. nationality had been extended to the territory, and that the status of `citizens of Puerto Rico’ constituted a form of citizenship which was a subset of U.S. nationality. There is no basis for the assertion that separate Puerto Rican nationality was created because a separate class of citizenship had been established pursuant to the treaty of cession and the Territorial Clause.

In Section 5 of the Jones Act of 1917 Congress extended U.S. citizenship to Puerto Rico, with less than 250 people availing themselves of the right to remain `citizens of Puerto Rico’ by complying with prescribed procedures within six months of the effective date of the Jones Act. Again, all U.S. citizens, whether residing in one of the states, the U.S. territories including Puerto Rico, as well as those who remained `citizens of Puerto Rico’ under the Jones Act, had one `nationality’ regardless of the legal basis and classification of their `citizenship’ under applicable law.

Since the enactment by Congress of Section 202 of the Nationality Act of 1940, followed by the enactment of Section 302 of the Immigration and Nationality Act in 1952, now codified at 8 U.S.C. 1402, all persons who were U.S. citizens or `citizens of Puerto Rico’ under the Jones Act have the status of U.S. citizens, as well as the underlying U.S. nationality established by Article IX of the Treaty of Paris. The status of `citizen of Puerto Rico’ is not a separate Puerto Rican nationality, a substitute for, or an alternative to the U.S. citizenship status established for the inhabitants of Puerto Rico under 8 U.S.C. 1402, much less the underlying nationality arising from the Treaty of cession.

The citizenship provisions of the Foraker Act no longer apply to persons born in Puerto Rico, and no longer define the status of any person. The term `citizen of Puerto Rico’ under 1 LPRA Sec. 7

(based on Section 10 of the Political Code of Puerto Rico), now has a meaning equivalent to local citizenship or residency in the States. Rather than being a form of citizenship based on or having the same meaning as nationality conferred by a national sovereign, `citizenship’ of Puerto Rico is a status created under the limited jurisdiction of the local government. It is no different than the residency status defined by Congress for Puerto Rico in 48 U.S.C. 733a.

H.R. 856 does not deny Constitutionally permanent citizenship to people born in Puerto Rico. Instead, it honestly recognizes that Puerto Rico has not yet achieved Constitutional integration with the U.S. sufficient to secure for persons born there the same or equal citizenship status and rights as Americans born or naturalized in the States of the Union. As a permanent feature of U.S. Constitutional law, the 14th Amendment protections which make U.S. citizenship irrevocable only apply in the case of person born or naturalized in one of the States of the Union. Of course, under the Territorial Clause Congress can approve a statute extending any provision of the Constitution and laws of the United States to Puerto Rico or any other unincorporated territory. However, a future Congress will not be bound by the statute, and can repeal the law. Admission of a territory to statehood under Article IV of the Constitution is the only way to bind Congress forever to political union and application of the Constitution and laws of the United States on the basis of permanent equality.

As discussed earlier, in the 1970 case of Rogers v. Bellei (401 U.S. 815), the Supreme Court of the United States limited to persons whose citizenship is based on birth or naturalization in the States of the Union. In ruling that the 14th Amendment does not make citizenship permanent or irrevocable in the case of persons born outside the U.S. whose citizenship is conferred by statute, and that Congress can terminate U.S. non-constitutional citizenship by the same power through which it is granted, the court stated that: The central fact, in our weighing of the plaintiff’s claim to continuing and therefore current United States citizenship, is that he was born abroad. He was not born in the United States. He was not naturalized in the United States * * *

All this being so, it seems indisputable that the first sentence of the Fourteenth Amendment has no application to plaintiff Bellei. He simply is not a Fourteenth Amendment first-sentence citizen. His posture contrasts with that of Mr. Afroyim, who was naturalized in the United States * * *.

Thus, the U.S. Constitution has been judicially interpreted by the high court of last resort to establish that persons born outside the U.S. in a foreign country who acquire statutory U.S. citizenship based on the U.S. citizenship of parents do not have the permanent and Constitutionally-guaranteed citizenship that people acquire upon birth in a State.

This is the same situation in which people born in Puerto Rico find themselves. The statutory

citizenship of Bellei was established under 8 U.S.C. 1401 based on birth outside the States to U.S. citizens parents. The U.S. citizenship of persons born in Puerto Rico was established under 8 U.S.C. 1402, based on birth in an unincorporated territory. In the case of both nationality of parents or location of birth in an area under U.S. jurisdiction and sovereignty but not a State, there is no Constitutional protection under the 14th Amendment. Rather, as the Supreme Court stated in Bellei about the type of citizenship granted under 8 U.S.C. 1401, `That type, and any other not covered by the Fourteenth Amendment, was necessarily left to proper congressional action.’

Unlike a person who U.S. citizenship arises from birth to an American parent overseas, persons whose statutory U.S. citizenship is based on birth in Puerto Rico are `subject to the jurisdiction of the United States.’ This means that in addition to having citizenship that is not Constitutionally guaranteed, persons born in Puerto Rico live under U.S. laws enacted in a political process in which they have less than equal political rights.

Thus, just as the Supreme Court says in the Bellei case that Congress could return to the situation before the current immigration laws were adopted, in which persons born outside the U.S. to an American parent did not automatically acquire U.S. citizenship, `proper congressional action’ in the case of Puerto Rico could include a return to the arrangement in the 1900 through 1917 period before Congress made birth in Puerto Rico a basis for statutory citizenship. Under the 1922 case of Balzac v. People of Puerto Rico (258 U.S. 298), the U.S. must exercise its powers consistent with the fundamental due process rights that constrain our government wherever it acts.

The application of due process to the actions of the Federal Government in the exercise of U.S. sovereignty in Puerto Rico does not mean Congress cannot determine the citizenship of people born there as it deems consistent with the national interest. The only way to secure Constitutionally-

protected citizenship is to complete the process of Constitutional integration so that people born in Puerto Rico also will be born in a State of the Union for purposes of the 14th Amendment.

Finding (3). It is important to recognize that Congress can extend the provisions of the

Constitution and laws of the United States to an unincorporated territory by statute, and it can subsequently amend, modify or repeal application of any such statute to the territories.

An unincorporated territory which has local self-government over internal affairs under a constitution approved by the local residents has been referred to as a `commonwealth’ in the case of both Puerto Rico and the Northern Mariana Islands. These unincorporated territories remain subject to the authority of Congress under the Territorial Clause, but have relations with the Federal Government consistent with applicable organic legislation and local constitutional enabling acts as long as those acts are in effect. In the case of Reid v. Covert, the U.S. Supreme Court accurately described the Territorial Clause power as one which arises from the need for Congress, `* * * to provide rules and regulations to govern temporarily territories with wholly dissimilar traditions and institutions * * *’ [emphasis added]. The central concept which must be recognized is that the Territorial Clause power was never intended to provide a Constitutional framework for the permanent disenfranchisement of U.S. citizens who have established traditions and institutions of self-government similar to our own.

Once a territory is prepared constitutionally, politically, legally and socially for full self-

government through incorporation or separate nationhood, Congress and the people concerned eventually must face the moment of truth. In the case of 36 States of the Union we have examples of decisions by Congress and the territorial body politic to resolve the ultimate status of territories in favor of incorporation leading to statehood–including the case of Hawaii which has many parallels to the Puerto Rico situation. Only Texas was admitted into the Union without being a territory, directly from its prior status as the separate sovereign Republic of Texas.

The Philippines is an example of a territory acquired under the same Treaty of Paris terms under which Puerto Rico was ceded to the U.S., and Congress resolved that status question in favor of independence.

There are prominent leaders in Puerto Rico who believe there is no practical alternative to the current status. Of course, Congress must determine if continuing unincorporated territory status for an indefinite period serves the national interest. The U.S. also has a right to self-determination, and Section 9 of U.N. Resolution 748 accepting the current Puerto Rico status expressly recognizes that both the U.S. and Puerto Rico, as parties to this present relationship, have the right to initiate further self-determination to later the relationship.

As noted by former a distinguished former member of the Committee with extensive expertise in insular law and policy, Robert J. Lagomarsino, in the statement submitted in connection with the hearings on H.R. 856 on March 19, 1997, the U.S. has the option of terminating the current status in

favor of independence if mutually agreed terms for continued association cannot be achieved. No one expects that to occur, but in response to the theory and argument that the U.S. is somehow bound in a relationship based on adhesion, the Committee feels compelled to state for the record that Congress retains full authority under the Territorial Clause power to ensure that U.S. sovereignty is exercised in the case of Puerto Rico in a manner consistent with the national interest.

Finding (4). In 1950 Congress, followed by the residents of Puerto Rico in a referendum, approved the terms set forth in a Federal statute (Public Law 81-600) under which local constitutional self-government over internal affairs in Puerto Rico would be adopted. This statutory procedure was `in the nature of a compact’ to follow the specified procedure leading to internal self-government under a local constitution, and by its terms Public Law 81-600 did not address the issue of Puerto Rico’s ultimate political status.

Neither the vote to approve Public Law 81-600 in 1951, nor the vote to approve the local constitution in 1952 presented the residents with the political status alternatives of independence or statehood. Rather, those votes were on approval or disapproval first of Public Law 81-600 as the procedure for establishing local self-government under a constitution, and then on approval or disapproval of the constitution itself. These votes were, however, historic and significant acts of self-

determination pursuant to which the institutions of local self-government were established and the residents of Puerto Rico were enabled to exercise sovereignty over internal affairs of the territory.

The 1952 constitution did not create a permanent status for Puerto Rico under the U.S. Constitution binding upon a future Congress, nor did it recognize a separate national sovereignty for Puerto Rico. Rather, the Public Law 81-600 procedure constituted a delegation to Puerto Rico by Congress of powers of administration subject to the retained Territorial Clause authority of Congress with respect to governance in matters within the local sovereignty of a new constitutional government as approved by Congress and the residents of the territory. The nature of Puerto Rico’s status in this respect was properly discerned by the Federal judiciary in the case of U.S. v. Sanchez, 992 F.2d 1143 (1993).

It is also important to note that even though the Spanish translation of `commonwealth’ means `free associated state,’ Puerto Rico did not enter into the international status of `free association’ as recognized by the U.N., nor did Puerto Rico establish a relationship to this Nation of `free association’ as recognized by the United States, as a result of adopting local constitutional self-government.

The Committee notes that there have been attempts to explain the use of the term `free associated state’ in Spanish and `commonwealth’ in English as a measure taken to avoid a misunderstanding and ensure that Puerto Rico’s new status under the 1952 local constitution was not

confused with the status of the States of the Union. This is curious for two reasons. First, there was and is little risk that anyone would confuse Puerto Rico’s status under Public Law 81-600 with statehood simply because it is described as that of a free associated state, while there was and is a high likelihood of confusion between the term `free associated state’ and free association as that term is used to describe the status of an associated republic with separate national sovereignty.

Since Puerto Rico did not achieve separate national sovereignty and simply exercises delegated local sovereignty subject to the supremacy of Federal law, use of the term `free associated state’ in Spanish and `commonwealth’ in English created a far greater risk of confusion, and actually caused a great deal of misunderstanding, than would have occurred if either of these two labels had been used in both Spanish and English.

The second curious thing about the explanation given for the use of different terminology is that both the PDP as the party which endorses commonwealth and the Federal Government have accepted and promoted the treatment of Puerto Rico as a State to the extent practical and consistent with the U.S. Constitution and Public Law 81-600. The Bush memorandum of 1992, the case of Rodriguez v. Popular Democratic Party, and this bill, H.R. 856, are examples of all three branches of government encouraging `state-like’ treatment of Puerto Rico on the basis of the present structure of local self-government.

This does not create confusion because it is clear from the organic documents creating the current status that Puerto Rico’s current status is not equivalent to statehood because it is not Constitutionally permanent or guaranteed. Rather than being permanently protected by the 10th Amendment, the status of Puerto Rico is defined by statute and is subject to the discretion of Congress under the Territorial Clause.

There is full awareness in the Federal Government that the Spanish term for the current status is `free associated state,’ and the real concern is that this has been used to confuse people in Puerto Rico about whether their current status is that of a U.S. territory or a `state’ as that term is used in international law, with separate national sovereignty. In this regard, the Committee notes with concern what seems almost to be a misinformation campaign in Puerto Rico about international law and practice as well as U.S. Constitutional practice as it relates to the legal nature of free association.

The Committee therefore appreciates and regards as authoritative the analysis of free association which was submitted by Ambassador Fred M. Zeder in connection with the hearing on

H.R. 856 conducted by the Committee on March 19, 1997. Ambassador Zeder was President Reagan’s Personal Representative and the U.S. Chief Negotiator who concluded

negotiations with the constitutional governments of the Trust Territory of the Pacific Islands, administered by the U.S. under a U.N. trusteeship from 1947 until decolonization was achieved in 1986.

Findings 5 and 6. Because of the `attributes of political sovereignty’ recognized by the U.N. in Resolution 748, though established `in a free and democratic’ manner, remain subject to U.S. Constitutional process, the U.N. expressly recognized in Section 9 of Resolution 748 that `the will of both the Puerto Rican and American peoples’ would be respected in the future `in the eventuality that either of the parties to the mutually agreed association may desire any change in the terms of this association.’

On the same day that the U.N. General Assembly adopted Resolution 748, it also adopted resolution 742 (VIII), which defined the criteria for a `treaty or bilateral agreement’ which would constitute a legitimate associated state relationship consistent with the right of fully sovereign self-

government as opposed to local self-government, and these criteria included `* * * the freedom of the population of a Territory * * * to modify at any time this status * * * Representation without discrimination in the central legislative organs on the same basis as other inhabitants and regions * * * [and] Citizenship without discrimination on the same basis as other inhabitants’ of the nation with which the territory is associated.

In response and rebuttal to criticism in the U.N. in ensuing years based upon, among other things, perceived variance between the criteria set forth in Resolution 742 and the status of Puerto Rico accepted by the U.N. under Resolution 748, every U.S. President since 1953 has confirmed, consistent with Section 9 of Resolution 748, that the United States continues to recognize the right of self-

determination for the residents of Puerto Rico, and that this right can be exercised in favor of independence if that status is freely chosen by the voters and approved through the applicable Constitutional processes of the U.S. and Puerto Rico.

The three status options set forth in U.N. Resolution 1541 form an internationally-recognized basis for completion of a process leading to full self-government. Those established forms of full self-

government include national independence, separate sovereignty in free association, or full integration within another nation, which under the U.S. Constitutional system is statehood.

Finding (7). The decisions of the United States Supreme Court in the 1980 case of Harris v. Rosario (446 U.S. 651) and the 1981 case of Rodriguez v. Popular Democratic Party (457 U.S. 1) constitute judicial interpretations which, when taken together, confirm that, consistent with the national sovereignty of the United States in Puerto Rico, Congress continues to exercise authority and responsibility to determine the application of Federal law in Puerto Rico pursuant the Territorial

Clause, and that the residents of Puerto Rico enjoy a prescribed degree of local sovereignty over internal matters which arise under the local constitution adopted in 1952 pursuant to Public Law 81

600. Thus, neither the delegation of government limited authority over internal affairs through authorization for the adoption of a local constitution under Public Law 81-600, nor the diplomatic measures taken by the United States in 1953 to fulfill its obligations and inform the U.N. with respect to the self-determination process for Puerto Rico, have altered the status of Puerto Rico as an unincorporated territory the United States subject to the authority of Congress under the Territorial Clause.

The two decisions referred to above also correctly reflect that Puerto Rico has political autonomy under the local constitution, but that all local measures of self-government promulgated through the internal constitutional process must be in conformity with the laws of the United States and provisions of the U.S. Constitution applicable to Puerto Rico as determined by Congress. Thus, the local sovereignty which has been conferred by Congress pursuant to Public Law 81-600 is–as noted in the Rodriguez opinion–analogous to the sovereignty that States retain in the Federal Union.

However, the sovereignty of a locally self-governing unincorporated territory is not coextensive with that of a State, due to the fact that the sovereignty of the States is permanently reserved under the 10th Amendment to the U.S. Constitution. In contrast, the local sovereignty of the Commonwealth of Puerto Rico is established within the framework of Public Law 81-600, a statutory measure for the governance of Puerto Rico which is not a permanent status under the Federal Constitution or binding upon Congress or the people of the United States in the future, as recognized in Section 9 of U.N. Resolution 748.

Finding (10). Since the `commonwealth’ option on the 1993 ballot was defined differently than the current status of Puerto Rico, these results strongly suggest that for the first time since Resolution 748 was adopted by the U.N. the will of the people is to modify the present association as contemplated by Section 9 of that U.N. document. See discussion of findings 5-6, above.

Finding (11). As the degree of self-government and social development in the various territories of the United States has evolved, appropriate administrative arrangements have been put in place within the Executive Branch. For example, 35 years after Spain ceded Puerto Rico to the U.S. under the Treaty of Paris, President Franklin D. Roosevelt ended the role of the Department of War as the lead agency for managing Federal policy toward the territory and assigned that responsibility to the Department of the Interior under Executive Order 6726 (May 29, 1934).

The practice of designating the Department of the Interior to manage relations between the

unincorporated territories and the Federal Government, including those which had been under military administration due to the circumstances under which the U.S. acquired and/or exercised sovereignty, was followed by President Truman in, for example, the case of Guam (Executive Order 10077, September 7, 1949), and American Samoa (Executive Order 10264, June 29, 1951). In other cases, Congress has prescribed by statute the role of the Department of the Interior, as, for example, in the case of the U.S. Virgin Islands (48 U.S.C. 1541).

Of more immediate relevance here, however, is the manner in which the U.S. has organized itself with respect to Puerto Rico and the Northern Mariana Islands, the two unincorporated territories which have implemented a commonwealth structure of local self-government over internal affairs under constitutions approved by the residents of each territory. Establishment of local constitutional government in the `Commonwealth of Puerto Rico’ was authorized by Congress under Public Law 81600 in 1950, and in the `Commonwealth of the Northern Mariana Islands’ by Public Law 94-241 in 1976.

In the case of Puerto Rico, the local constitution took effect in 1952, but it was not until July 25, 1961, that President John F. Kennedy issued a memorandum regarding the establishment of self-

government `in respect of internal affairs and administration.’ This instrument did not assign responsibility for managing Federal policy on Puerto Rico to any one department, but simply notified all Federal authorities to act in a manner consistent with the advent of local territorial government under a constitution approved by the residents of the territory. The Kennedy memo also stated, `If any matters arise involving fundamentals of this arrangement, they should be referred to the Office of the President.’

In the case of the Commonwealth of the Northern Mariana Islands (CNMI), the U.S. administered but did not have sovereignty over the Northern Mariana Islands under a U.N. trusteeship beginning in 1947, but in 1976 the people had voted to come within U.S. sovereignty as an unincorporated territory with U.S. citizenship and internal self-government under a local constitution approved by the people. However, the status of those islands as an unincorporated territory of the U.S. with that `commonwealth’ structure of local self-government did not become fully effective until the

U.N. trusteeship was terminated in 1986. Thereupon, President Reagan issued Executive Order 12572 on November 3, 1986, acknowledging that other departments and agencies have specific on-going program responsibilities, but assigning `general administrative supervision’ of Federal policy and programs in CNMI to the Department of the Interior.

The inconsistency in the administrative arrangements for managing these two `commonwealth’

territories does not reveal or create any legal or political distinctions between them. Indeed, it is interesting to note that in 1935 the Philippines became a self-governing `commonwealth’ as part of the transition of that body politic from unincorporated territory status to separate sovereignty based on national independence.

On November 30, 1992, President George Bush issued a superseding memorandum which confirmed the Kennedy memo notification of Federal authorities to implement measures in Puerto Rico consistent with the fact that Puerto Rico is a self-governing territory with a commonwealth structure, and to refer any fundamental questions about Puerto Rico’s status to the Office of the President.

However, reflecting intervening rulings of the U.S. Supreme Court providing judicial interpretation of the status of Puerto Rico and the change in the world order between 1961 and 1992, the Bush memo also recognized the need for further self-determination in Puerto Rico to achieve a permanent status. For example, consistent with the ruling of the Supreme Court in Rodriguez v. Popular Democratic Party, 457 U.S. 1 (1982), the Bush memo directed departments and agencies to treat Puerto Rico the same as States are treated to the extent practicable.

On December 2, 1994, President William Clinton sent a letter to the Ranking Republican on the House Committee on Natural Resources, the then incoming and current Chairman of the Committee on Resources, advising that an `Interagency Working Group on Puerto Rico’ had been organized within the Executive Branch to `ensure serious attention to Puerto Rico’s circumstances, needs and proposals.’ The Interagency Group includes several offices within the White House and the Office of Management and Budget.

Finding (12). In addition to its relevance to the purposes of the bill and the initial decision stage as provided in Section 4(a), this finding bears on the requirement for Congress to complete the process for resolving the ultimate status of Puerto Rico through the transition and implementation stages pursuant to Sections 4(b) and 4(c), including in the event of an inconclusive vote result to exercise its authority to complete the decolonization process consistent with the principle of self-

determination.

This finding is the most singular, essential and critical expression of the Committee’s intentions and purpose in approving H.R. 856. The previous comment regarding Finding (12) is fully applicable with respect to Finding (15). Section 3. Policy

This Section provides the Congressionally-prescribed U.S. policy framework for the self

determination process established by the bill. The most important policy statement is that the legislation is adopted by Congress with a commitment to encourage the process through which a permanent and full self-governing status is achieved. Only that will end the disenfranchisement of the people of Puerto Rico.

Subsection 3(b) addresses the 100 year history of English and Spanish as official languages, makes it clear that English language requirements could be imposed on Puerto Rico as a commonwealth that could not be imposed on Puerto Rico if it were a State, and calls for application in Puerto Rico of any national law on language if statehood is implemented.

Section 4. Process for Puerto Rican full self-government, including the initial decision stage, transition stage and implementation stage This central element of the bill prescribes the three stages of the process leading to full self-government, requiring approval of Congress and submission of the question of whether to move to the next stage as each previous stage is completed.

Initial Decision Stage. Section 4(a) provides for a status referendum to be held in Puerto Rico before the end of 1998, in which voters will make choices presented in a three-way ballot with commonwealth, independence and statehood offered side-by-side.

The Committee realizes that many in Puerto Rico have argued that placing commonwealth alongside the options for full self-government may permit some to assert that the current status can be made Constitutionally permanent when that is not the case.

However, to avoid any perception of unfairness to any party the three options are being presented together. Thus, the options on the ballot are:

(A) to retain the Commonwealth of Puerto Rico status as an unincorporated territory; (B) full self-government through separate sovereignty in the form of independence or free association; or (C) full self-government through Statehood. Transition Stage. Under Section 4(b), if voters approve separate sovereignty or statehood, within 180 days the President must propose a Transition Plan of no more than ten years to implement that status preference. After Congress approves the Transition Plan under `expedited procedures’ under Section 6 of H.R. 856, it is presented to the people of Puerto Rico for approval. Upon its approval the Transition Plan will be implemented in accordance with its terms.

Implementation Stage. Section 4(c) is the stage which begins not less than two years prior to end of Transition Plan, with the President submitting to Congress a Joint Resolution with recommendations for the date of termination of the transition and the date of implementation of full self-government. Upon approval by Congress through expedited procedures of the Joint Resolution,

Congress approves an Implementation Act which is submitted for approval by the Puerto Rican people in a vote. If the Implementation Act is approved, then full self-government is implemented in accordance with the Joint Resolution approved by Congress.

Voters are free to choose to continue the current commonwealth status based on a preference for that status over the available options for full self-government. For the first time in almost 100 years under the sovereignty of Congress, the people of Puerto Rico will be empowered to choose between local self-government within the Territorial Clause and the two options for a permanent status based on an exercise of sovereignty by the people through which such a permanent and fully self-governing status is achieved.

A copy of the ballot prescribed by Section 4 in English and Spanish is included as Appendix F. In the manner provided in Section 4, Congress will, for the first time, be creating an orderly and informed process for self-determination in Puerto Rico. Instead of allowing local political parties to impose choices between mismatched options which do not withstand Constitutional scrutiny, and which lead to contradictory legal and political results, Congress will bring clarity and validly defined choice into the process consistent with applicable U.S. Constitutional law and international practice recognized by the United States.

Once there is a majority vote for a new status, Congress will proceed in a deliberate manner. By going back to the voters not once, not twice, but three times, Congress will empower the people to redeem the right to self-determination within a framework established by Congress consistent with our values as a Nation and the Constitution.

If at the initial stage under Section 4(a) the voters do not approve measures proposed by Congress to achieve full self-government in accordance with the preference expressed by the voters, then the self-determination process prescribed in Section 4(a) of the bill begins anew pursuant to Section 5 as discussed below.

For the people of Puerto Rico to be empowered to engage in a free and informed act of self-

determination, the definitions of `commonwealth,’ `separate sovereignty’ and `statehood’ must be ones formulated not for the purpose of either confirming or repudiating the positions of the local political parties regarding the legal and political nature of the current status of Puerto Rico or the alternative status options. Rather, language should be adopted which is accurate, authoritative and balanced as a matter of law. While the status definitions were formulated to reflect the aspirations of the three local political parties as far as Constitutional, legal, fiscal, political, and budgetary constraints permit, the desirability of the formula to be adopted in the view of the political parties were not controlling.

Congress is responsible for formulating a definition that it accepts as fair, and which has a clear

meaning that Congress can respond to if it is approved by the voters. The language in the findings of Section 2, the policy of Section 3, and initial decision ballot definitions and transition provisions of Section 4 clarify the status choices for the benefit of both the people of Puerto Rico and Congress. Section 5. Requirements relating to referenda, including inconclusive referendum and

applicable laws

This Section provides the legal framework for conducting referenda under this bill. Current election laws of Puerto Rico requiring U.S. citizenship and satisfaction of residency requirements will apply. For example, under those election laws, non-residents who are serving on active duty in the military are allowed to cast absentee ballots.

The provisions of Section 5 relating to the authority and procedures for conducting referenda include the requirement for a referendum no less than once every ten years if neither statehood nor independence receive a majority of the vote in the initial decision stage under Section 4(a), thus rendering the referendum inconclusive.

If a vote is inconclusive at the transition stage under Section 4(b) or the implementation stage under Section 4(c), then Congress must act under Section 5(c)(1) to implement the referendum results in accordance with Findings 12 and 15 in Section 2.

If the inhabitants of the territory do not achieve full self-government through either integration into the United States or separate sovereignty in the form of absolute independence or free associated republic status, Puerto Rico will remain an unincorporated territory of the United States, subject to the authority of Congress under the Territorial Clause of the U.S. Constitution. In that event, the existing `Commonwealth of Puerto Rico’ structure of local self-government over internal affairs and administration under a constitution approved by the people will continue to remain in effect, subject to such alterations, modifications, changes or other disposition of the status of the territory and its population as Congress may deem in the exercise of its Territorial Clause powers to be in the national interest.

Congress historically has recognized a commitment to take into consideration the free expressed wishes of the people of Puerto Rico regarding the future political status of the territory. This policy is consistent with respect for the right of self-determination in areas which are not fully self-

governing, but does not constitute a legal restriction or binding limitation on the Territorial Clause powers of Congress to determine the permanent relationship between the United States and Puerto Rico through measures adopted and implemented through the U.S. Constitutional process. Nor does any such restriction or limitation arise from the PRFRA (Public Law 81-600).

Section 6. Congressional procedures for consideration of legislation

This Section prescribes the `expedited procedures’ for Congressional action in response to the results of referenda conducted under its provisions. Section 7. Availability of funds for the referenda

This Section provides that funding to conduct the referenda required under the bill will be from existing Federal excise taxes on foreign rum, which is covered over to the Puerto Rico Treasury. The President may identify all or part of the excise tax as grants to the State Elections Commission of Puerto Rico for conducting the referenda and for voter education.

COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS

With respect to the requirements of clause 2(l)(3) of rule XI of the Rules of the House of Representatives, and clause 2(b)(1) of rule X of the Rules of the House of Representatives, the Committee on Resources’ oversight findings and recommendations are reflected in the body of this report. CONSTITUTIONAL AUTHORITY STATEMENT Article IV, section 3 of the Constitution of the United States grants Congress the authority to enact H.R. 856. COST OF THE LEGISLATION

Clause 7(a) of rule XIII of the Rules of the House of Representatives requires an estimate and a comparison by the Committee of the costs which would be incurred in carrying out H.R. 856. However, clause 7(d) of that rule provides that this requirement does not apply when the Committee has included in its report a timely submitted cost estimate of the bill prepared by the Director of the Congressional Budget Office under Section 403 of the Congressional Budget Act of 1974.

COMPLIANCE WITH HO– USE RULE XI

1. With respect to the requirement of clause 2(l)(3)(B) of rule XI of the Rules of the House of Representatives and Section 308(a) of the Congressional Budget Act of 1974, H.R. 856 does not contain any new budget authority, spending authority, credit authority, or an increase or decrease in revenues or tax expenditures. 2. With respect to the requirement of clause 2(l)(3)(D) of rule XI of the Rules of the House of Representatives, the Committee has received no report of oversight findings and recommendations from the Committee on Government Reform and Oversight on the subject of H.R. 856.

3. With respect to the requirement of clause 2(l)(3)(C) of rule XI of the Rules of the House of Representatives and Section 403 of the Congressional Budget Act of 1974, the Committee has received the following cost estimate for H.R. 856 from the Director of the Congressional Budget Office. CONGRESSIONAL BUDGET OFFICE COST ESTIMATE U.S. Congress, Congressional Budget Office, Washington, DC, June 3, 1997. Hon. DON YOUNG, Chairman, Committee on Resources, House of Representatives, Washington, DC. DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 856, the United States-Puerto Rico Political Status Act. If you wish further details on this estimate, we will be pleased to provide them. The CBO staff contacts are John R. Righter (for federal costs) and Marjorie Miller (for the state and local impact). Sincerely, JUNE E. O’NEILL, DIRECTOR. Enclosure. H.R. 856–United States-Puerto Rico Political Status Act Summary: CBO estimates that H.R. 856 would result in no significant cost to the federal government. Enacting H.R. 856 would not affect direct spending or receipts; therefore, pay-as-you-go procedures would not apply. H.R. 856 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act of 1995 (UMRA). Should the bill be enacted, the government of Puerto Rico probably would incur some costs, but these costs would be voluntary and, therefore, not the result of a mandate. Description of the bill’s major provisions: H.R. 856 would authorize a process for determining and implementing a permanent political status for Puerto Rico. The process would include three stages:

(1) The government of Puerto Rico would have the authority to hold a referendum by December 31, 1998, whereby voters would choose between continuing Puerto Rico’s status as a territory of the United States or becoming fully self-governing through either separate sovereignty or statehood. If the initial referendum does not result in a majority vote for either separate sovereignty or statehood, the bill would authorize that additional referenda occur not less than once every 10 years. (2) If a majority of voters select one of the two forms of self-government, the President would have six months to submit legislation to the Congress that provides for a transition period of up to 10 years. In a second referendum, voters would then approve or disapprove the enacted transition plan. (3) At least two years prior to the end of the transition period, the President would submit a joint resolution to the Congress recommending a date for ending Puerto Rico’s transition to full self

governance. A third referendum would then be held to approve or disapprove the enacted terms of implementation.

The bill would help fund the referenda by earmarking existing federal excise taxes on foreign rum. Under current law, the federal government collects and then transfers these taxes to the government of Puerto Rico. Under H.R. 856, the President could elect to make some or all of the funds available to the State Elections Commission of Puerto Rico.

Estimated cost to the Federal Government: CBO estimates that H.R. 856 would result in no significant cost to the federal government. Some minor costs could be incurred to formulate and approve the subsequent legislation required by the bill if the voters of Puerto Rico select one of the two forms of self-government. Other than such minor costs, H.R. 856 would only reallocate, upon request, a portion of funds derived from federal excise taxes already paid to the government of Puerto Rico. The total amount of those funds would not change.

A change in the political status of Puerto Rico could have a significant budgetary impact on the federal government. The potential impact could include changes in spending on federal assistance programs, such as Supplemental Security Income and Medicaid, plus changes in receipts from federal income taxes, which residents of Puerto Rico currently do not pay. Any such changes, however, would be contingent on the outcome of the referenda and future actions of the Congress and the President. Therefore, enacting H.R. 856 would have no direct budgetary impact (other than the minor discretionary costs cited above). Pay-as-you-go considerations: None.

Estimated impact on State, local, and tribal governments: H.R. 856 contains no intergovernmental mandates as defined in UMRA. If the bill were enacted, the government of Puerto Rico would probably incur some costs, but these costs would be voluntary and not the result of a mandate.

This bill would authorize the Puerto Rican government to hold a referendum no later than December 31, 1998. If a majority of voters choose some form of self-government, the bill would provide for a second referendum in fiscal year 2000 and, possibly, another in about fiscal year 2010. If a majority choose to continue the current commonwealth status of Puerto Rico, the bill would provide for a second referendum within 10 years.

CBO estimates that the government of Puerto Rico would incur costs of $5 million to $10 million for each referendum held. Given the timetable established by the bill, we expect that one referendum would be held in fiscal year 1999. The timing of additional referenda would depend on the outcome of the first. This estimate is based on the cost of recent elections in Puerto Rico and includes the cost of voter education as well as the cost of holding elections. If the process established by this

bill resulted in a change in the political status of Puerto Rico, there would be a significant fiscal impact on the government of that island. Any such change would be the result of future legislation. Estimated impact on the private sector: The bill would impose no new private-sector mandates as defined in UMRA. Estimate prepared by: Federal Costs: John R. Righter. Impact on State, Local, and Tribal Governments: Marjorie Miller. Estimate approved by: Paul N. Van de Water, Assistant Director for Budget Analysis. COMPLIANCE WITH PUBLIC LAW 104-4

H.R. 856 contains no unfunded mandates. CHANGES IN EXISTING LAW If enacted, H.R. 856 would make no changes in existing law. ADDITIONAL VIEWS H.R. 856, the United States-Puerto Rico Political Status Act establishes a process that could result in a permanent change in the political relationship between the United States and Puerto Rico. This bill would authorize a plebescite in Puerto Rico to determine the future political status aspirations of the 3.8 million American citizens of that island. Also, this bill mandates Congress and the Administration to consider legislation within a reasonable time frame to enact the status which receives a majority vote in that plebiscite. Enactment of H.R. 856 would represent the first time that the United States Congress has

committed itself to considering a statehood admissions act or legislation to assist Puerto Rico in becoming a separate and sovereign nation, should its voters so decide. This is a most serious and solemn matter, and it is the responsibility of the Congress to make every effort to ensure the integrity of the process at each step.

The bill addresses a host of contentious and complex issues. Several positive changes were made at the mark up meeting held by the Committee on Resources on May 21, 1997. The core issue, however, remains the fairness and accuracy of the status options that will be presented to the voters in the plebescite. If there is a perception that the choices presented to the Puerto Rican voters were unfairly or inaccurately crafted so as to achieve a desired result, the entire process will be tainted.

Puerto Rico holds elections every four years in which over 80% of registered voters participate. This enviable voter turnout makes clear how dedicated to democracy the people of Puerto Rico are. Each of the three major political parties in Puerto Rico are tied to a preferred status option. The New Progressive Party (NPP) supports statehood, the Popular Democratic Party (PDP) supports

commonwealth, and the Popular Independence Party (PIP) supports independence.

There has long been strong division among the voters of Puerto Rico with respect to its status with the United States. Three votes have taken place under local authority on the issue of status. The Commonwealth status has prevailed in each case, although the vote for Statehood has substantially narrowed the gap over the years. In 1952, 76.5% supported commonwealth while 23.5% supported statehood. The Popular Independence Party boycotted this plebescite.

A vote taken in 1967 found 60.41% supported commonwealth, 38.99% supported statehood, and 0.6% supported independence. In 1993 the plebescite results were 48.4% for commonwealth, 46.2% for statehood, and 4.4% for independence. Just last month, one day after the bill was reported by the Resources Committee, El Nuevo Dia, Puerto Rico’s largest circulation newspaper, released the results of a poll on status that reported 43% for commonwealth; 39% for statehood; and 4% for independence.

As introduced, H.R. 856 contained definitions of each status written by those who favor the statehood option to make Puerto Rico the 51st state. Shortly after introduction, a letter was sent by Resources Committee Chairman Don Young and Senior Democratic Member George Miller to the presidents of the three political parties asking them to submit to the Conference alternative definitions they believed would be appropriate for their status choice. The letter affirmed Congress’ responsibility and authority for the definitions that ultimately will be included in the legislation.

All three parties responded to the Young/Miller letter regarding the status definitions. The New Progressive Party endorsed the definition of statehood as it already appeared in the bill. The Popular Independence Party and the Popular Democratic Party submitted versions different from the original bill. The definition submitted by the PIP was largely accepted. Both the NPP and PIP now support the language in the bill as reported from Committee.

The provisions submitted by the Commonwealth party were not incorporated into the legislation. The PDP is the only political party not accommodated in the bill, and the only party whose definition was written by those who oppose that option. One need not be an advocate of Commonwealth to recognize the concern of PDP leaders who, unless improvements are made in the definition, would be compelled to urge their voters to endorse a definition of Commonwealth that does not reflect the Party’s current perspective.

Many problems exist in Puerto Rico under today’s Commonwealth relationship. Almost 4 million American citizens live on the island without access to all enefits received by those in the several states. Puerto Rico does not have a vote on the floor of the House of Representatives and has no representation at all in the U.S. Senate, but must abide by all laws passed by the Congress unless

specifically exempted.

The definition proposed by the PDP made significant changes in the current status arrangement between Puerto Rico and the federal government. These changes, which would produce a Commonwealth that is more autonomous than at present, recognizes that the new arrangement would have to be sanctioned by a future Congress. At the mark up of H.R. 856, Representative George Miller proposed to add the definition submitted by the PDP to the bill to comport with the desires of the PDP leadership. That amendment failed, and the definition that remains does not reflect the version of Commonwealth supported by Commonwealth proponents.

While the Committee rejected the definition of Commonwealth as submitted verbatim, changes still need to be made in the definition remaining in H.R. 856 to assure that the option which has prevailed in past plebescites is fairly stated and reflects an accurate view of commonwealth that is acceptable to the Congress. There is no reason to ask the voters of Puerto Rico to vote on a status option that, should it be approved, would be rejected by the Congress. By the same token, there is little reason to ask voters to approve a definition that does not reflect to a reasonable degree the concept of Commonwealth envisioned by the Party.

Those who refuse to improve the Commonwealth definition in H.R. 856 to bring it closer to the definition written by the PDP risk toppling the entire process by forcing Commonwealth to be defined in unfavorable terms. It will be difficult enough to move a statehood admissions bill through Congress without having it carry the extra burden a questionable plebescite process would surely bring. Those who deny a Commonwealther a fair chance to vote on his or her option are undermining their own cause and the best interests of the voters of Puerto Rico.

We are hopeful that, though continuing negotiations, a Commonwealth definition can be crafted that reflects some of the modifications in the current status sought by the PDP while still being acceptable to the Congress. We believe that this is not only an achievable goal, but a crucial one if the legislation is to pass the Congress and maintain credibility in the Puerto Rican electorate. Only if both of those criteria are met will the outcome of the plebiscite be accepted.

We additionally note several improvements that were made during bipartisan negotiations prior to the Committee’s mark-up that improve the bill and increase the likelihood that the status selected by the voters of Puerto Rico are accepted by the Congress. In particular, we are gratified that the period of time for transitioning to the new status approved by a majority of voters now will be no longer than ten years, a substantial improvement over the indefinite period of `at least ten years’ contained in the original bill. The Congress, the voters of Puerto Rico, and all other U.S. citizens must recognize that we are not sanctioning a straw poll, but setting in motion a process that is intended to result in

profound change for the relationship with Puerto Rico. Reasonable time frames for implementing such changes send a powerful signal that the Congress is serious about taking this action. George Miller. William Delahunt. Frank Pallone, Jr. Bruce F. Vento. Edward J. Markey.

1Eni Faleomavaega. Sam Farr. Maurice Hinchey. Donna Christian-Green. Peter DeFazio. ADDITIONAL VIEWS As Puerto Rico’s sole representative in the United States Congress, I want to reiterate my emphatic support of H.R. 856, the United States Puerto Rico Political Status Act, and expand upon my remarks during the Resources Committee hearings and markup of this legislation which will provide a process leading to full self-government for Puerto Rico.

H.R. 856 is a truly historic piece of legislation that will allow the 3.8 million United States citizens residing in Puerto Rico to exercise their inalienable right to self-determination and to resolve, once and for all, their 100 year old colonial dilemma. Puerto Rico became a territory of the United States in 1898 pursuant to the Treaty of Paris, following the Spanish-American War. The first fifty years of American rule were marked by strong and direct involvement of the United States government in the administration of local Puerto Rican affairs. During this period, Puerto Rico was initially ruled by a military government. The military government was replaced in 1900 by a federally-appointed civil government. In 1917, Puerto Ricans became United States citizens under the terms of the Jones Act passed by Congress. Since then we have cherished and valued that citizenship with our hearts and our minds and have defended it with our blood. Nearly 200,000 Puerto Ricans have served the United States in this century’s armed conflicts. Thousands of them paid the ultimate price. It was not until 1948, however, that Puerto Ricans were allowed by the United States Congress to elect their own governor. Then, in 1950, the United States Congress passed the Puerto Rico Federal Relations Act which authorized Puerto Rico to establish a local self-government structure in the image of state governments. The intent was to create a provisional form of local self-rule until the status issue could be resolved. Puerto Rico would remain an unincorporated territory of the United States, subject to the authority and plenary powers of Congress under the territorial clause of the Constitution which states that `Congress shall have the Power to dispose of and make all needful Rules and Regulations respecting the territory or other Property belonging to the United States’ (Article IV, Section 3).

The fact is that ours is a colonial relationship that clearly contradicts the basic tenets and principles of democracy. One in which Puerto Rico’s economic, social and political affairs are, to a large degree, controlled and influenced by a government over which we exercise no control and in which we do not participate.

Congress has not only the power, but also the moral obligation to put an end to the disenfranchisement of the 3.8 million United States citizens that reside in Puerto Rico. H.R. 856, with its broad bipartisan support of nearly 90 cosponsors–including Speaker Newt Gingrich and Minority Leader Richard Gephardt–clearly evidences that this is not a Republican issue nor a Democratic issue. The issue here is whether the United States, as a nation, and as the example and inspiration of democracy throughout the world, can continue to deny equality and maintain 3.8 million of its own citizens disenfranchised. After 100 years, our nation has finally begun to recognize that its colonial relationship with Puerto Rico is unsustainable and is clearly not in the best interests of neither Puerto Rico nor the United States. On June 6, 1997, the Washington Post published an editorial entitled An Obligation of Equality that evidences the growing concern nationwide regarding the disenfranchisement of the United States citizens of Puerto Rico. I would like to conclude my remarks by having this editorial be made part of the Resources Committee Report on H.R. 856, as it reflects why I adamantly support enactment of the United States Puerto Rico Political Status Act. AN OBLIGATION OF EQUALITY

Americans don’t have long to get accustomed to the possibility that they may soon be considering admitting Puerto Rico as the 51st state. This outcome arises from the fact that, largely unattended, Congress is heading toward organizing a referendum next year giving the territory’s nearly 4 million residents a `once and for all’ choice of its relationship to the United States. The key moment came a few weeks ago, when the House Resources Committee approved 44 to 1 a bill from Chairman Don Young (R-Alaska) allowing Puerto Ricans to decide the future of their island. This old question is being brought to a new boil by the approach of the centennial of the Spanish-American War, in which the United States acquired bits of global empire. To many people, 100 years of American sovereignty over a territory denied full rights is enough.

The proposed referendum offers voters a choice among statehood, independence and the existing `commonwealth.’ Commonwealth, however, enters the contest under a double burden. It has

been tried over the decades and found wanting by many, and it is now widely seen as anachronistically `colonial,’ even though it was a status voluntarily chosen and repeatedly affirmed. Chairman Young said in May, when his bill was passed in committee: `It is time for Congress to permit democracy to fully develop in Puerto Rico, either as a separate sovereign republic or as a state if a majority of the people are no longer content to continue the existing commonwealth structure for local self-

government.’ Its supporters tried hard in committee to sweeten the definition of commonwealth that would be put to referendum. They failed. For now, anyway, the island’s statehood party is on a roll.

For Puerto Ricans, the status question bears deeply on identity as well as practical benefit. Closely related is the issue of language; the committee declared that English–a minority language in Puerto Rico–shall apply `to the same extent as Federal law requires throughout the United States.’ Tough issues of taxes and benefits must also be calculated.

For Americans. * * * But wait a minute. Puerto Ricans are already Americans. The issue for all of us is that they are citizens without full political rights, including a vote in Congress. This is the anomaly the proposed referendum is meant to remedy. Whatever the Puerto Rican choice, we continental Americans have an obligation of equality to our fellow citizens on the island. CARLOS ROMERO-BARCELO. APPENDICES

A. Memorandum of United States to the General Assembly of the United Nations Regarding Status of Puerto Rico, 1953 B. Resolution 2, Legislature of Puerto Rico, January 23, 1997 C. Statement of Chairman Don Young, Congressional Record, September 28, 1996 D. Letter of March 3, 1997, inviting submission of status definitions by local political parties in Puerto Rico E. Status definitions submitted by local political parties in Puerto Rico F. Ballot for Referendum under H.R. 856 Offset Folios 58 to 85 Insert here