Without asking or seeking the views of the people in any territory – the State Department and other federal agencies began relying on the Insular Cases to label people in Puerto Rico, Guam, American Samoa, and the U.S. Virgin Islands as so-called “non-citizen” U.S. nationals. Over time, Congress has recognized people born in Puerto Rico (1917), the U.S. Virgin Islands (1927), Guam (1950), and the Northern Mariana Islands (1976) as U.S. citizens through federal statutes. But Congress and federal agencies continue to label people born in American Samoa to non-citizen parents as “nationals, but not citizens, of the United States at birth.” 

A 1996 House Report, relying on past statements of the Justice Department, concluded “that the statutory citizenship which Congress has conferred on people born in Puerto Rico during the territory period is not full, equal citizenship protected by the Fourteenth Amendment to the Constitution.” As a result, it bluntly declared that “the current citizenship status of Puerto Ricans exists at the discretion of Congress.” 

Disturbingly, the House Report set forth the view that “the current statutory citizenship of people born in Puerto Rico can be regulated or even rescinded without violating the equal protection and due process rights which have been extended to Puerto Rico by Congress and the Federal courts …  as the fundamental rights test of the Insular Cases . . . is met,” meaning, in its view, “the existence of a legitimate Federal purpose achieved in a manner reasonably related to that purpose.”  The same principles would apply to people born in other territories. 

The Supreme Court has yet to either approve or reject the power of Congress to turn citizenship on and off in U.S. territories, leaving these questions unresolved as a constitutional matter.