Abstract

Excerpted From: Emmanuel Hiram Arnaud, The Territorial Continuum: American Samoa, Criminal Adjudication, And Territorial Administration, 47 Cardozo Law Review 1225 (April 2026) (338 Footnotes) (Full Document)

The federalist structure of the American Republic is praised for both its simplicity and its concomitant complexity. At the founding, the Framers "split the atom of sovereignty," creating citizens with "two political capacities, one state and one federal." While the federal Constitution limits the power of the federal government, the states reserve and wield tremendous political power within their borders, producing mythical "laboratories of democracy." The federal government and the states have different, and sometimes overlapping, powers. A related central tenet of U.S. federalism posits that the states are treated equally vis-a-vis each other. Indeed, the Supreme Court has expressed this tenet in multiple ways. During the early republic, the Court explained that when new states join the Union, they do so on equal footing with the original thirteen. More recently, the Court expressed that "the constitutional equality of the States is essential to the harmonious operation of the scheme upon which the Republic was organized." The fundamental expectation, then, is that although there may be differences in laws and legislation among the states, the federal government--absent exceptional circumstances--cannot encroach into local administration of the states nor purposely treat the states differently than one another. That expectation, however, does not apply to the territories of the United States.

While the states act as laboratories of democracy, the territories of the United States exist in an oubliette of inequality. The United States currently holds five inhabited territories, and unlike the states, they play a limited role in the power-sharing agreement we call federalism. To begin, the Constitution treats territories differently than states. The Territorial Clause of the Constitution gives Congress the power to administer the territories prior to their admission as states, which the Supreme Court has interpreted as providing the federal government with "plenary power" over the territories. Plenary power means that in "legislating for [the territories], Congress exercises the combined powers of the general, and of a state government. "In other words, Congress has immense power over the territories because it acts in two capacities: as the national legislature and the local legislature. Wielding this power, over time, Congress has provided less government assistance to territorial residents than those in the states, unilaterally created new departments in territorial governments, and even provided for different import duties for some territories. Moreover, many parts of the Federal Constitution do not apply to them (both by judicial fiat and by the plain language of those provisions), rendering territorial residents ineligible to vote for the President or Vice President of the United States or any voting federal representatives.

Further, and unlike our expectation for states, Congress treats the territories differently from one another--a conspicuous, significant, and underexplored proposition. From our nations founding, the federal government acquired territories with the aim of eventually admitting them as states. Upon acquisition, Congress passed "organic acts" -- congressional statutes aimed at organizing a territorys internal governmental structure. Because the traditional objective was to create states out of territories, the organic acts created local systems of governance that, with some variation, gradually became more democratic as the local population grew, a sort of precursor to the full democratic rights and obligations that accompanied statehood. A territory would slowly acquire, for example, a popularly elected legislature, the ability to elect their own governor, and eventually, after meeting requirements like population size, admission as a state of the Union. This pattern of territorial development towards statehood was faithfully honored for over 100 years. But, after a series of early twentieth century cases known as the Insular Cases, the Supreme Court announced that Congress could hold territories in perpetuity without ever admitting them as states. Over time, and with congressional authorization, some of these territories developed internally to match the sophistication of would-be states, while Congress neglected the internal development of other territories almost as soon as it acquired them.

This Article confronts the unexplored consequences of that differential territorial governance, revealing a complex story of competing institutional interests and claims to sovereignty. Using American Samoa as a case study, this Article argues that the different stages of internal development among the territories produce constitutional anomalies that challenge both our allegiance to the standard account of the United States as an anti-imperial power and our faith in the basic principles of federalism and equal justice under law. That differential treatment, which I describe as a "territorial continuum," illustrates the varying consequences of congressional action and inaction regarding territories at different waypoints on the traditional path towards internal development. My analysis reveals that congressional inaction is not necessarily disadvantageous. For example, because Congress never passed an organic act for American Samoa, local leaders took matters into their own hands and wrote a constitution approved by the local government. This constitution ostensibly represents the expressions of Samoans, safeguarding many local cultural practices. But I also show that congressional inaction can be a double-edged sword producing uncomfortable realities in the realm of constitutional law and criminal procedure. This descriptive framework provides a starting point that emphasizes the often-overlooked truism that the territories are not a monolith. It also suggests that their differences are in large part explained by the level of congressional and judicial interaction with the territory, which often leaves a given territory in an interstitial liminal space.

American Samoa is an ideal case study because it is unique, even among the territories. Indeed, if one views the traditional path towards statehood as a continuum, no territory has made less progress along that path than American Samoa. Acquired through treaties with Indigenous inhabitants at the turn of the twentieth century, it is located about 2, miles away from the closest state: Hawaii. Not only is it physically distant from the rest of the United States, but it is also politically estranged. It is the only territory where people born within its geographic boundaries are not U.S. citizens. Instead, they are considered U.S. "noncitizen nationals," a status that exists somewhere between statelessness and legal permanent residency. Further, American Samoa is an unorganized territory, meaning that Congress never passed an organic act creating the internal governmental structure for the territory. Indeed, Congress never fulfilled its role as the territorys legislature, instead leaving the administrator role to the executive branch. After fifty years of Naval Rule, the Department of the Interior (DOI) today retains ultimate control over the territory, standing in stark contrast to other territorial arrangements like Puerto Rico and the Northern Mariana Islands, which answer to Congress instead. And it is the only territory where same-sex marriage is arguably unlawful, despite clear Supreme Court precedent to the contrary.

American Samoas relationship with the federal government also invites comparisons to our nations colonial past. Congress never created a federal district court nor vested Samoan territorial courts with jurisdiction over federal crimes, producing a problematic prosecutorial posture. Take, for example, a person who is accused of wire fraud occurring across state lines. Typically, a federal prosecutor will charge the person with wire fraud in the district where most of the prohibited actions occurred so that the accused can eventually face judgement by a judge or jury chosen from a fair cross section of that community. Imagine instead that the criminal defendant is dragged 2, miles away for proceedings before a judge and jury that share no characteristics with the community that was harmed--the equivalent of being taken to California to be prosecuted for an alleged crime committed in New York. This is not a story from colonial Boston or Philadelphia. It is a reality for people living in the U.S. territory of American Samoa because the territory lacks a federal district court.

Recent scholarship on U.S. territories has made valuable contributions to our understanding of territorial governance, particularly through constitutional analysis of the plenary power doctrine and the imperial history of the United States. This work has understandably concentrated on Puerto Rico and the Insular Cases, given Puerto Ricos demographic significance and foundational role in modern territorial jurisprudence. Existing scholarship on other territories, including American Samoa, has explored important questions regarding citizenship, democratic deficiencies, federal neglect, and cultural erosion under imperial policies. However, scholars have yet to develop a conceptual framework for understanding how American Samoas distinctive territorial status fits within our broader constitutional structure, leaving a critical gap in our understanding of the diversity and complexity of territorial governance.

Building on this foundation, this Article addresses an apparent limitation in territorial scholarship: the tendency to treat territories as constitutionally equivalent despite their distinct histories and federal relationships. Through the conceptual framework of the territorial continuum, this Article provides the first systematic theory for understanding differential treatment among territories with American Samoa serving as the primary case study. In Part I, I offer a primer on territorial governance and explain how the federal government deviated from its traditional pattern of territorial administration with American Samoa. In Part II, I offer the general contours of the territorial continuum, arguing that we can make sense of a territorys relationship with the United States by interrogating several characteristics like where on the traditional path to statehood it stands. In Part III, I highlight anomalies produced by American Samoas relationship with the federal government, much of which is due to congressional inaction with respect to its traditional role as territorial administrator, focusing on issues of criminal procedure. Missing certain markers of territorial development by, for example, lacking an organic act is not necessarily disadvantageous. But it does produce an unnecessarily complex and tenuous governance landscape which I explore below.

Through these moves, I make a unique contribution to the growing scholarship on the territories, plenary power, and constitutional criminal procedure. There is much to learn by looking at the spectrum of territorial administration. This inquiry concerning the variation and treatment of places under U.S. sovereignty where constitutional rules may or may not apply to varying degrees is a constructive and essential project for understanding territorial administration, federalism, and the relationship between autonomy, self-determination, and our constitutional order.

[ . . . ]

American Samoa challenges our standard account of federalism, equality, and fundamental fairness in territorial governance and criminal adjudication. It also invites us to view the territories as having diverse relationships with the federal government or, as I posit, as inhabiting a territorial continuum. When viewed through a territorial continuum that maps the varied characteristics of territorial administration, American Samoa introduces a case study of an enigmatic relationship with the federal government producing complex lived realities distinct from other territories. Although Congress abandoned its traditional nation-building role upon acquisition, federal influence remained in the territory, namely through extended military rule and, most recently, supervision under the DOI. This governance scheme produced a multitude of counterintuitive and uneasy postures. Congressional inaction generated an environment for greater local autonomy, leading to local actors ratifying a constitution and local laws of their own making largely unencumbered by the federal government, but undoubtedly influenced by Western concepts of governance. American Samoas status as an unorganized territory, however, impeded the creation of a local federal district court, creating an uneasy federal prosecutorial posture. And it is precisely these variations in treatment of the territories, which the territorial continuum represents, that is an essential project for understanding the relationship between autonomy, self-determination, and our nations commitments to its first principles.

 * Associate Professor of Law, Boston University School of Law.