[House Report 105-131]
[From the U.S. Government Publishing Office]
105th Congress Rept. 105-131
HOUSE OF REPRESENTATIVES
1st Session Part 1
_______________________________________________________________________
UNITED STATES-PUERTO RICO POLITICAL STATUS ACT
_______
June 12, 1997.--Ordered to be printed
_______________________________________________________________________
Mr. Young of Alaska, from the Committee on Resources, submitted the
following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany H.R. 856]
[Including cost estimate of the Congressional Budget Office]
The Committee on Resources, to whom was referred the bill
(H.R. 856) to provide a process leading to full self-government
for Puerto Rico, having considered the same, report favorably
thereon with an amendment and recommend that the bill as
amended do pass.
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu
thereof the following:
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``United States-Puerto
Rico Political Status Act''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title, table of contents.
Sec. 2. Findings.
Sec. 3. Policy.
Sec. 4. Process for Puerto Rican full self-government, including the
initial decision stage, transition stage, and implementation stage.
Sec. 5. Requirements relating to referenda, including inconclusive
referendum and applicable laws.
Sec. 6. Congressional procedures for consideration of legislation.
Sec. 7. Availability of funds for the referenda.
SEC. 2. FINDINGS.
The Congress finds the following:
(1) Puerto Rico was ceded to the United States and came under
this Nation's sovereignty pursuant to the Treaty of Paris
ending the Spanish-American War in 1898. Article IX of the
Treaty of Paris recognized the authority of Congress to provide
for the political status of the inhabitants of the territory.
(2) Consistent with establishment of United States
nationality for inhabitants of Puerto Rico under the Treaty of
Paris, Congress has exercised its powers under the Territorial
Clause of the Constitution (article IV, section 3, clause 2) to
provide by several statutes beginning in 1917, for the United
States citizenship status of persons born in Puerto Rico.
(3) Consistent with the Territorial Clause and rulings of the
United States Supreme Court, partial application of the United
States Constitution has been established in the unincorporated
territories of the United States including Puerto Rico.
(4) In 1950, Congress prescribed a procedure for instituting
internal self-government for Puerto Rico pursuant to statutory
authorization for a local constitution. A local constitution
was approved by the people of Puerto Rico, conditionally
approved by Congress, subject to congressionally required
amendment by Puerto Rico, and thereupon given effect in 1952
after acceptance of congressional conditions by the Puerto Rico
Constitutional Convention and an appropriate proclamation by
the Governor. The approved constitution established the
structure for constitutional government in respect of internal
affairs without altering Puerto Rico's fundamental political,
social, and economic relationship with the United States and
without restricting the authority of Congress under the
Territorial Clause to determine the application of Federal law
to Puerto Rico, resulting in the present ``Commonwealth''
structure for local self-government. The Commonwealth remains
an unincorporated territory and does not have the status of
``free association'' with the United States as that status is
defined under United States law or international practice.
(5) In 1953, the United States transmitted to the Secretary-
General of the United Nations for circulation to its Members a
formal notification that the United States no longer would
transmit information regarding Puerto Rico to the United
Nations pursuant to Article 73(e) of its Charter. The formal
United States notification document informed the United Nations
that the cessation of information on Puerto Rico was based on
the ``new constitutional arrangements'' in the territory, and
the United States expressly defined the scope of the ``full
measure'' of local self-government in Puerto Rico as extending
to matters of ``internal government and administration, subject
only to compliance with applicable provisions of the Federal
Constitution, the Puerto Rico Federal Relations Act and the
acts of Congress authorizing and approving the Constitution, as
may be interpreted by judicial decision.''. Thereafter, the
General Assembly of the United Nations, based upon consent of
the inhabitants of the territory and the United States
explanation of the new status as approved by Congress, adopted
Resolution 748 (VIII) by a vote of 22 to 18 with 19
abstentions, thereby accepting the United States determination
to cease reporting to the United Nations on the status of
Puerto Rico.
(6) In 1960, the United Nations General Assembly approved
Resolution 1541 (XV), clarifying that under United Nations
standards regarding the political status options available to
the people of territories yet to complete the process for
achieving full self-government, the three established forms of
full self-government are national independence, free
association based on separate sovereignty, or full integration
with another nation on the basis of equality.
(7) The ruling of the United States Supreme Court in the 1980
case Harris v. Rosario (446 U.S. 651) confirmed that Congress
continues to exercise authority over Puerto Rico as territory
``belonging to the United States'' pursuant to the Territorial
Clause found at Article IV, section 3, clause 2 of the United
States Constitution; and in the 1982 case of Rodriguez v.
Popular Democratic Party (457 U.S. 1), the Court confirmed that
the Congress delegated powers of administration to the
Commonwealth of Puerto Rico sufficient for it to function
``like a State'' and as ``an autonomous political entity'' in
respect of internal affairs and administration, pending further
disposition by Congress. These rulings constitute judicial
interpretation of Puerto Rico's status which is in accordance
with the clear intent of Congress that establishment of local
constitutional government in 1952 did not alter Puerto Rico's
status as an unincorporated United States territory.
(8) In a joint letter dated January 17, 1989, cosigned by the
Governor of Puerto Rico in his capacity as president of one of
Puerto Rico's principal political parties and the presidents of
the two other principal political parties of Puerto Rico, the
United States was formally advised that ``. . . the People of
Puerto Rico wish to be consulted as to their preference with
regards to their ultimate political status'', and the joint
letter stated ``. . . that since Puerto Rico came under the
sovereignty of the United States of America through the Treaty
of Paris in 1898, the People of Puerto Rico have not been
formally consulted by the United States of America as to their
choice of their ultimate political status''.
(9) In the 1989 State of the Union Message, President George
Bush urged the Congress to take the necessary steps to
authorize a federally recognized process allowing the people of
Puerto Rico, for the first time since the Treaty of Paris
entered into force, to freely express their wishes regarding
their future political status in a congressionally recognized
referendum, a step in the process of self-determination which
the Congress has yet to authorize.
(10) On November 14, 1993, the Government of Puerto Rico
conducted a plebiscite initiated under local law on Puerto
Rico's political status. In that vote none of the three status
propositions received a majority of the votes cast. The results
of that vote were: 48.6 percent for a commonwealth option, 46.3
percent statehood, and 4.4 percent independence.
(11) In a letter dated December 2, 1994, President William
Jefferson Clinton informed leaders in Congress that an
Executive Branch Interagency Working Group on Puerto Rico had
been organized to coordinate the review, development, and
implementation of executive branch policy concerning issues
affecting Puerto Rico, including the November 1993 plebiscite.
(12) Under the Territorial Clause of the Constitution,
Congress has the authority and responsibility to determine
Federal policy and clarify status issues in order to resolve
the issue of Puerto Rico's final status.
(13) On January 23, 1997, the Puerto Rico Legislature enacted
Concurrent Resolution 2, which requested the 105th Congress ``.
. . to respond to the democratic aspirations of the American
citizens of Puerto Rico'' by approving legislation authorizing
``. . . a plebiscite sponsored by the Federal Government, to be
held no later than 1998''.
(14) Nearly 4,000,000 United States citizens live in the
islands of Puerto Rico, which have been under United States
sovereignty and within the United States customs territory for
almost 100 years, making Puerto Rico the oldest, largest, and
most populous United States island territory at the
southeastern-most boundary of our Nation, located astride the
strategic shipping lanes of the Atlantic Ocean and Caribbean
Sea.
(15) Full self-government for Puerto Rico is attainable only
through establishment of a political status which is based on
either separate Puerto Rican sovereignty and nationality or
full and equal United States nationality and citizenship
through membership in the Union and under which Puerto Rico is
no longer an unincorporated territory subject to the plenary
authority of Congress arising from the Territorial Clause.
SEC. 3. POLICY.
(a) Congressional Commitment.--In recognition of the significant
level of local self-government which has been attained by Puerto Rico,
and the responsibility of the Federal Government to enable the people
of the territory to freely express their wishes regarding political
status and achieve full self-government, this Act is adopted with a
commitment to encourage the development and implementation of
procedures through which the permanent political status of the people
of Puerto Rico can be determined.
(b) Language.--English shall be the common language of mutual
understanding in the United States, and shall apply in all of the
States duly and freely admitted to the Union. The Congress recognizes
that at the present time, Spanish and English are the joint official
languages of Puerto Rico, and have been for nearly 100 years; that
English is the official language of Federal courts in Puerto Rico; that
the ability to speak English is a requirement for Federal jury
services; yet Spanish rather than English is currently the predominant
language used by the majority of the people of Puerto Rico; and that
Congress has the authority to expand existing English language
requirements in the Commonwealth of Puerto Rico. In the event that the
referenda held under this Act result in approval of sovereignty leading
to Statehood, it is anticipated that upon accession to Statehood,
English language requirements of the Federal Government shall apply in
Puerto Rico to the same extent as Federal law requires throughout the
United States. Congress also recognizes the significant advantage that
proficiency in Spanish as well as English has bestowed on the people of
Puerto Rico, and further that this will serve the best interests of
both Puerto Rico and the rest of the United States in our mutual
dealings in the Caribbean, Latin America, and throughout the Spanish-
speaking world.
SEC. 4. PROCESS FOR PUERTO RICAN FULL SELF-GOVERNMENT, INCLUDING THE
INITIAL DECISION STAGE, TRANSITION STAGE, AND
IMPLEMENTATION STAGE.
(a) Initial Decision Stage.--A referendum on Puerto Rico's political
status is authorized to be held not later than December 31, 1998. The
referendum shall be held pursuant to this Act and in accordance with
the applicable provisions of Puerto Rico's electoral law and other
relevant statutes consistent with this Act. Approval of a status option
must be by a majority of the valid votes cast. The referendum shall be
on the approval of 1 of the 3 options presented on the ballot as
follows:
``Instructions: Mark the status option you choose as each is defined
below. Ballot with more than 1 option marked will not be counted.
``A. Commonwealth.--If you agree, mark here ______
``Puerto Rico should retain Commonwealth, in which--
``(1) Puerto Rico continues the present Commonwealth
structure for constitutional self-government with respect to
internal affairs and administration;
``(2) Puerto Rico is an unincorporated territory of the
United States, and the provisions of the Constitution and laws
of the United States, including those provisions for rights,
privileges, and immunities of United States citizens, apply to
Puerto Rico as determined by Congress;
``(3) persons born in Puerto Rico have statutory United
States nationality and citizenship as prescribed by Congress;
``(4) the qualified voters of Puerto Rico elect a nonvoting
Resident Commissioner to the United States who serves in the
House of Representatives;
``(5) the levels of Federal benefits and taxes extended to
the residents of Puerto Rico are established by Federal law as
deemed equitable by Congress;
``(6) Puerto Rico uses the currency of the United States, is
within the United States customs territory and defense system,
and English language requirements of the Federal Government
apply, as provided by Federal law;
``(7) the extension, continuation, modification, and
termination of Federal law and policy applicable to Puerto Rico
and its residents is within the discretion of Congress; and
``(8) the ultimate status of Puerto Rico will be established
through a process authorized by Congress which includes self-
determination by the residents of Puerto Rico in periodic
referenda.
``B. Separate Sovereignty.--If you agree, mark here ______
``The people of Puerto Rico should become fully self-governing
through separate sovereignty in the form of independence or free
association, in which--
``(1) Puerto Rico is a sovereign Republic which has full
authority and responsibility over its territory and population
under a constitution which is the supreme law, providing for a
republican form of government and the protection of human
rights;
``(2) the Republic of Puerto Rico is a member of the
community of nations vested with full powers and
responsibilities for its own fiscal and monetary policy,
immigration, trade, and the conduct in its own name and right
of relations with other nations and international
organizations;
``(3) the people of Puerto Rico owe allegiance to and have
the nationality and citizenship of the Republic of Puerto Rico;
``(4) the Constitution and laws of the United States no
longer apply in Puerto Rico, and United States sovereignty in
Puerto Rico is ended; thereupon birth in Puerto Rico or
relationship to persons with statutory United States
citizenship by birth in the former territory shall cease to be
a basis for United States nationality or citizenship, except
that persons who had such United States citizenship have a
statutory right to retain United States nationality and
citizenship for life, by entitlement or election as provided by
the United States Congress, based on continued allegiance to
the United States: Provided, That such persons will not have
this statutory United States nationality and citizenship status
upon having or maintaining allegiance, nationality, and
citizenship rights in any sovereign nation, including the
Republic of Puerto Rico, other than the United States;
``(5) the previously vested rights of individuals in Puerto
Rico to benefits based upon past services rendered or
contributions made to the United States shall be honored by the
United States as provided by Federal law;
``(6) Puerto Rico and the United States seek to develop
friendly and cooperative relations in matters of mutual
interest as agreed in treaties approved pursuant to their
respective constitutional processes, and laws including
economic and programmatic assistance at levels and for a
reasonable period as provided on a government-to-government
basis, trade between customs territories, transit of citizens
in accordance with immigration laws, and status of United
States military forces; and
``(7) a free association relationship may be established
based on separate sovereign republic status as defined above,
but with such delegations of some government functions and
other cooperative arrangements as agreed to by both parties
under a bilateral pact terminable at will by either the United
States or Puerto Rico.
``C. Statehood.--If you agree, mark here ______
``Puerto Rico should become fully self governing through Statehood,
in which--
``(1) the people of Puerto Rico are fully self-governing with
their rights secured under the United States Constitution,
which shall be fully applicable in Puerto Rico and which, with
the laws and treaties of the United States, is the supreme law
and has the same force and effect as in the other States of the
Union;
``(2) the sovereign State of Puerto Rico is in permanent
union with the United States, and powers not delegated to the
United States by the Constitution nor prohibited by the
Constitution to the States, are reserved to the State of Puerto
Rico or to the people;
``(3) United States citizenship of those born in Puerto Rico
is guaranteed, protected and secured in the same way it is for
all United States citizens born in the other States;
``(4) the people of Puerto Rico have equal rights,
privileges, immunities, and benefits as well as equal duties
and responsibilities of citizenship, including payment of
Federal taxes, as those in the several States;
``(5) Puerto Rico is represented by two members in the United
States Senate and is represented in the House of
Representatives proportionate to the population;
``(6) United States citizens in Puerto Rico are enfranchised
to vote in elections for the President and Vice President of
the United States; and
``(7) English is the official language of business and
communication in Federal courts and Federal agencies as made
applicable by Federal law to every other State, and Puerto Rico
is enabled to expand and build upon existing law establishing
English as an official language of the State government,
courts, and agencies.''.
(b) Transition Stage.--
(1) Plan.--(A) Within 180 days of the receipt of the results
of the referendum from the Government of Puerto Rico certifying
approval of a ballot choice of full self-government in a
referendum held pursuant to subsection (a), the President shall
develop and submit to Congress legislation for a transition
plan of not more than 10 years which leads to full self-
government for Puerto Rico consistent with the terms of this
Act and the results of the referendum and in consultation with
officials of the three branches of the Government of Puerto
Rico, the principal political parties of Puerto Rico, and other
interested persons as may be appropriate.
(B) Additionally, in the event of a vote in favor of separate
sovereignty, the Legislature of Puerto Rico, if deemed
appropriate, may provide by law for the calling of a
constituent convention to formulate, in accordance with
procedures prescribed by law, Puerto Rico's proposals and
recommendations to implement the referendum results. If a
convention is called for this purpose, any proposals and
recommendations formally adopted by such convention within time
limits of this Act shall be transmitted to Congress by the
President with the transition plan required by this section,
along with the views of the President regarding the
compatibility of such proposals and recommendations with the
United States Constitution and this Act, and identifying which,
if any, of such proposals and recommendations have been
addressed in the President's proposed transition plan.
(C) Additionally, in the event of a vote in favor of United
States sovereignty leading to Statehood, the President shall
include in the transition plan provided for in this Act--
(i) proposals and incentives to increase the
opportunities of the people of Puerto Rico to learn to
speak, read, write, and understand English fully,
including but not limited to, the teaching of English
in public schools, fellowships, and scholarships. The
transition plan should promote the usage of English by
the United States citizens of Puerto Rico, in order to
best allow for--
(I) the enhancement of the century old
practice of English as an official language of
Puerto Rico, consistent with the preservation
of our Nation's unity in diversity and the
prevention of divisions along linguistic lines;
(II) the use of language skills necessary to
contribute most effectively to the Nation in
all aspects, including but not limited to
Hemispheric trade, and for citizens to enjoy
the full rights and benefits of their
citizenship;
(III) the promotion of efficiency and
fairness to all people in the conduct of the
Federal and State government's official
business; and
(IV) the ability of all citizens to take full
advantage of the economical, educational, and
occupational opportunities through full
integration with the United States; and
(ii) the effective date upon which the Constitution
shall have the same force and effect in Puerto Rico as
in the several States, thereby permitting the greatest
degree of flexibility for the phase-in of Federal
programs and the development of the economy through
fiscal incentives, alternative tax arrangements, and
other measures.
(2) Congressional consideration.--The plan shall be
considered by the Congress in accordance with section 6.
(3) Puerto rican approval.--
(A) Not later than 180 days after enactment of an Act
pursuant to paragraph (1) providing for the transition
to full self-government for Puerto Rico as approved in
the initial decision referendum held under subsection
(a), a referendum shall be held under the applicable
provisions of Puerto Rico's electoral law on the
question of approval of the transition plan.
(B) Approval must be by a majority of the valid votes
cast. The results of the referendum shall be certified
to the President of the United States.
(c) Implementation Stage.--
(1) Presidential recommendation.--Not less than two years
prior to the end of the period of the transition provided for
in the transition plan approved under subsection (b), the
President shall submit to Congress a joint resolution with a
recommendation for the date of termination of the transition
and the date of implementation of full self-government for
Puerto Rico within the transition period consistent with the
ballot choice approved under subsection (a).
(2) Congressional consideration.--The joint resolution shall
be considered by the Congress in accordance with section 6.
(3) Puerto rican approval.--
(A) Within 180 days after enactment of the terms of
implementation for full self-government for Puerto
Rico, a referendum shall be held under the applicable
provisions of Puerto Rico's electoral laws on the
question of the approval of the terms of implementation
for full self-government for Puerto Rico.
(B) Approval must be by a majority of the valid votes
cast. The results of the referendum shall be certified
to the President of the United States.
SEC. 5. REQUIREMENTS RELATING TO REFERENDA, INCLUDING INCONCLUSIVE
REFERENDUM AND APPLICABLE LAWS.
(a) Applicable Laws.--
(1) Referenda under puerto rican laws.--The referenda held
under this Act shall be conducted in accordance with the
applicable laws of Puerto Rico, including laws of Puerto Rico
under which voter eligibility is determined and which require
United States citizenship and establish other statutory
requirements for voter eligibility of residents and
nonresidents.
(2) Federal laws.--The Federal laws applicable to the
election of the Resident Commissioner of Puerto Rico shall, as
appropriate and consistent with this Act, also apply to the
referenda. Any reference in such Federal laws to elections
shall be considered, as appropriate, to be a reference to the
referenda, unless it would frustrate the purposes of this Act.
(b) Certification of Referenda Results.--The results of each
referendum held under this Act shall be certified to the President of
the United States and the Senate and House of Representatives of the
United States by the Government of Puerto Rico.
(c) Consultation and Recommendations for Inconclusive Referendum.--
(1) In general.--If a referendum provided in section 4(b) or
(c) of this Act does not result in approval of a fully self-
governing status, the President, in consultation with officials
of the three branches of the Government of Puerto Rico, the
principal political parties of Puerto Rico, and other
interested persons as may be appropriate, shall make
recommendations to the Congress within 180 days of receipt of
the results of the referendum regarding completion of the self-
determination process for Puerto Rico under the authority of
Congress.
(2) Additional referenda.--To ensure that the Congress is
able on a continuing basis to exercise its Territorial Clause
powers with due regard for the wishes of the people of Puerto
Rico respecting resolution of Puerto Rico's permanent future
political status, in the event that a referendum conducted
under section 4(a) does not result in a majority vote for
separate sovereignty or statehood, there is authorized to be
further referenda in accordance with this Act, but not less
than once every 10 years.
SEC. 6. CONGRESSIONAL PROCEDURES FOR CONSIDERATION OF LEGISLATION.
(a) In General.--The majority leader of the House of Representatives
(or his designee) and the majority leader of the Senate (or his
designee) shall each introduce legislation (by request) providing for
the transition plan under section 4(b) and the implementation
recommendation under section 4(c) not later than 5 legislative days
after the date of receipt by Congress of the submission by the
President under that section, as the case may be.
(b) Referral.--The legislation shall be referred on the date of
introduction to the appropriate committee or committees in accordance
with rules of the respective Houses. The legislation shall be reported
not later than the 120th calendar day after the date of its
introduction. If any such committee fails to report the bill within
that period, that committee shall be automatically discharged from
consideration of the legislation, and the legislation shall be placed
on the appropriate calendar.
(c) Consideration.--
(1) After the 14th legislative day after the date on which
the last committee of the House of Representatives or the
Senate, as the case may be, has reported or been discharged
from further consideration of such legislation, it is in order
after the legislation has been on the calendar for 14
legislative days for any Member of that House in favor of the
legislation to move to proceed to the consideration of the
legislation (after consultation with the presiding officer of
that House as to scheduling) to move to proceed to its
consideration at any time after the third legislative day on
which the Member announces to the respective House concerned
the Member's intention to do so. All points of order against
the motion to proceed and against consideration of that motion
are waived. The motion is highly privileged in the House of
Representatives and is privileged in the Senate and is not
debatable. The motion is not subject to amendment, or to a
motion to postpone, or to a motion to proceed to the
consideration of other business. A motion to reconsider the
vote by which the motion is agreed to or disagreed to shall not
be in order. If a motion to proceed to the consideration of the
legislation is agreed to, the respective House shall
immediately proceed to consideration of the legislation without
intervening motion (exception one motion to adjourn), order, or
other business.
(2)(A) In the House of Representatives, during consideration
of the legislation in the Committee of the Whole, the first
reading of the legislation shall be dispensed with. General
debate shall be confined to the legislation, and shall not
exceed 4 hours equally divided and controlled by a proponent
and an opponent of the legislation. After general debate, the
legislation shall be considered as read for amendment under the
five-minute rule. Consideration of the legislation for
amendment shall not exceed 4 hours excluding time for recorded
votes and quorum calls. At the conclusion of the bill for
amendment, the Committee shall rise and report the bill to the
House with such amendments as may have been adopted. The
previous question shall be considered as ordered on the
legislation and amendments thereto to final passage without
intervening motion, except one motion to recommit with or
without instructions. A motion to reconsider the vote on
passage of the legislation shall not be in order.
(B) In the Senate, debate on the legislation, and all
amendments thereto and debatable motions and appeals in
connection therewith, shall be limited to not more than 25
hours. The time shall be equally divided between, and
controlled by, the majority leader and the minority leader or
their designees. No amendment that is not germane to the
provisions of such legislation shall be received. A motion to
further limit debate is not debatable.
(3) Appeals from the decisions of the Chair relating to the
application of the rules of the Senate or the House of
Representatives, as the case may be, to the procedure relating
to the legislation described in subsection (a) shall be decided
without debate.
(d) Consideration by Other House.--(1) If, before the passage by one
House of the legislation described in subsection (a) that was
introduced in that House, that House receives from the other House the
legislation described in subsection (a)--
(A) the legislation of the other House shall not be referred
to a committee and may not be considered in the House that
receives it otherwise than on final passage under subparagraph
(B)(ii) or (iii); and
(B)(i) the procedure in the House that receives such
legislation with respect to such legislation that was
introduced in that House shall be the same as if no legislation
had been received from the other House; but
(ii) in the case of legislation received from the other House
that is identical to the legislation as engrossed by the
receiving House, the vote on final passage shall be on the
legislation of the other House; or
(iii) after passage of the legislation, the legislation of
the other House shall be considered as amended with the text of
the legislation just passed and shall be considered as passed,
and that House shall be considered to have insisted on its
amendment and requested a conference with the other House.
(2) Upon disposition of the legislation described in subsection (a)
that is received by one House from the other House, it shall no longer
be in order to consider such legislation that was introduced in the
receiving House.
(e) Upon receiving from the other House a message in which that House
insists upon its amendment to the legislation and requests a conference
with the House of Representatives or the Senate, as the case may be, on
the disagreeing votes thereon, the House receiving the request shall be
considered to have disagreed to the amendment of the other House and
agreed to the conference requested by that House.
(f) Definition.--For the purposes of this section, the term
``legislative day'' means a day on which the House of Representatives
or the Senate, as appropriate, is in session.
(g) Exercise of Rulemaking Power.--The provisions of this section are
enacted by the Congress--
(1) as an exercise of the rulemaking power of the Senate and
the House of Representatives and, as such, shall be considered
as part of the rules of each House and shall supersede other
rules only to the extent that they are inconsistent therewith;
and
(2) with full recognition of the constitutional right of
either House to change the rules (so far as they relate to the
procedures of that House) at any time, in the same manner, and
to the same extent as in the case of any other rule of that
House.
SEC. 7. AVAILABILITY OF FUNDS FOR THE REFERENDA.
(a) In General.--
(1) Availability of amounts derived from tax on foreign
rum.--During the period beginning October 1, 1997, and ending
on the date the President determines that all referenda
required by this Act have been held, from the amounts covered
into the treasury of Puerto Rico under section 7652(e)(1) of
the Internal Revenue Code of 1986, the Secretary of the
Treasury--
(A) upon request and in the amounts identified from
time to time by the President, shall make the amounts
so identified available to the treasury of Puerto Rico
for the purposes specified in subsection (b); and
(B) shall transfer all remaining amounts to the
treasury of Puerto Rico, as under current law.
(2) Report of referenda expenditures.--Within 180 days after
each referendum required by this Act, and after the end of the
period specified in paragraph (1), the President, in
consultation with the Government of Puerto Rico, shall submit a
report to the United States Senate and United States House of
Representatives on the amounts made available under paragraph
(1)(A) and all other amounts expended by the State Elections
Commission of Puerto Rico for referenda pursuant to this Act.
(b) Grants for Conducting Referenda and Voter Education.--From
amounts made available under subsection (a)(1), the Government of
Puerto Rico shall make grants to the State Elections Commission of
Puerto Rico for referenda held pursuant to the terms of this Act, as
follows:
(1) 50 percent shall be available only for costs of
conducting the referenda.
(2) 50 percent shall be available only for voter education
funds for the central ruling body of the political party,
parties, or other qualifying entities advocating a particular
ballot choice. The amount allocated for advocating a ballot
choice under this paragraph shall be apportioned equally among
the parties advocating that choice.
(c) Additional Resources.--In addition to amounts made available by
this Act, the Puerto Rico Legislature may allocate additional resources
for administrative and voter education costs to each party so long as
the distribution of funds is consistent with the apportionment
requirements of subsection (b).
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 Statesapproved 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 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 Non-Self-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
Non-Self-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-
governmentbegan 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
non-self-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 theCongressional 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 104-713, 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
1993definition, 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 104-713, 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 81-600 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 ofthe
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 implementingprovisions 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
structurefor 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 10-32, as follows:
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:
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 ofU.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. 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 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.
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.''
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 nationalsovereignty
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 anothernation, 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 81-600 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.
Finding (15). 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 ofRepresentatives, 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 HOUSE 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 aboutfiscal 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 benefits 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.
Eni 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