PUERTO RICO AND THE U.S. CONGRESS: The Road Ahead

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PUERTO
RicO
AND THE U.S. CONGRESS: THE ROAD AHEAD
MANUEL RODRfQUEZ ORELLANA*
Two roads diverged in a wood, and I,

I took the one less traveled by,
And that has made all the difference.
-Robert Frost
INTRODUCTION
After more than a century under U.S. rule, the political status of Puerto Rico remains
unresolved. A constitutional law scholar has advanced the proposition that, "Puerto Rico
and the United States are truly at the crossroads, in a situation of crisis, at a time when a
critical decision must be made."'
A Spanish colony for 400 years, it came under the sovereignty of the United States in
1898. By then, Puerto Rico had developed its own identity as a Spanish-speaking Latin
American nation of the Caribbean. Since then, three major pieces of legislation enacted
under congressional powers to "make all needful rules and regulations" regarding the terri2
tories are of special significance.
First, the Foraker Act of 19003 ordained a civil government to replace military rule,
set the conditions for relations between local and federal governments, and provided for an
elected, non-voting delegate, a "resident commissioner," to the U.S. Congress, which contin-
A.B. The Johns Hopkins University 1970; A.M. Brown University 1972; J.D. Boston College Law School 1975;
LL.M. Harvard Law School 1983. Professor of Law (Retired): Northeastern University School of Law; Inter-American
University School of Law. Secretary for North American Relations, Puerto Rican Independence Party
1. Carlos I. Gorrin-Peralta, Puerto Rico and the United States at the Crossroads, Remarks At The Harvard Law
School Panel Reconsidering the Insular Cases: The Future Status of Puerto Rico (Feb.19, 2014) (transcript available at
http://www.independencia.net/index.php?option=com-content&view=article&id=1468:puerto-rico-and-the-united-
states-at-the-crossroads&catid=49& ltemid=146&lang=es).
2. U.S. CONST. art. IV, 3, cl. 2 [hereinafter Territory Clause].
3. Organic Act of April 12, 1900, ch. 191, 31 Stat. 77 (1900).
TEXAS HISPANIC JOURNAL OF LAW AND POLICY
[Vol. 21:31
ues to exist to this day. The second organic act, the Jones Act of 1917, 4 added, among other
provisions, an elected Senate, extended U.S. citizenship to Puerto Ricans (in spite of vigorous opposition by the sole elective body, the House of Delegates, 5 now renamed "House of
Representatives"). The third important congressional enactment was Public Law 600 of 1950,
authorizing a process whereby the people of Puerto Rico could draft and approve a constitution for a strictly local government. 6 Public Law 600 amended the provisions of the 1917
Jones Act establishing the government of Puerto Rico, but kept the provisions of the Foraker
and Jones acts regulating the territorial relation between Puerto Rico and the United States.
Those provisions would come to be known as the Puerto Rico Federal Relations Act.
After the adoption of the constitutional text by the people of Puerto Rico, the Puerto
Rico Federal Relations Act was subsequently modified and accordingly approved by Congress through Public Law 447 of 1952. 7 In this statute, Congress eliminated bill of rights
provisions contained in the document and required that any amendments to Puerto Rico's
"constitution" conform to the U.S Constitution, Public Law 600, Public Law 447 and the
Federal Relations Act.8 At no time, however, were Puerto Ricans consulted or given a choice
as to a final, non-territorial and non-colonial political status. To this day, Puerto Rico remains an "unincorporated territory" under the sovereignty of the United States. 9
Organic Act of 1917 Jones Act Pub. L. No.39 Stat. 951 (1917).
See, e.g., Jos6 de Diego, Delegate, Memorandum to the President and the Congress of the United States (Mar.
12, 1914), in EL DESAIROI-O CONSTITUCIONAL DE PUERTO Rico: DOCUMENTOS Y CAsos, 72-78 (University of Puerto
Rico Press 1979) (introduced by the author and approved by the House of Delegates (Session: Mar. 12, 1914)). The core
of the opposition by the elected representatives states: "...we firmly and loyally sustain our opposition to be declared,
against our express will or consent, citizens of any other country that is not our own beloved land, given to us by God as a
an inalienable gift and irrepressible right." Id. at 72. The approved Memorandum concludes: "We are, as all Puerto
Ricans, believers in the existence of God and an afterlife everlasting; but if there were a citizenship in Heaven with the right
to eternal happiness, and it were offered in exchange for ours, we would hesitate to accept it and would not, in any case
accept it, until after death." Id. at 78. (My translation from the Spanish original.)
Act of Jul. 3, 1950, ch 446, 64 Stat. 3143
6.
7.
Act of Jul. 3, 1952, Pub. L. 447, 66 Stat. 327.(codified as amended at 48 U.S.C.A. 731d (1950)).
Id.
8.
See De Lima v. Bidwell, 182 U.S. 1 (1901), Downes v. Bidwell, 182 U.S. 244 (1901) and their progeny, up to
9.
Balzac v. People of Puerto Rico, 258 U.S. 463 (1922), Juan B. Torruella, The Insular Cases: The Establishment of a
Regime of Political Apartheid, 29 U. PA. J. INT'L L. 284 (2007) (establishing Puerto Rico's status as an "unincorporated" territory that belongs to, but is not a part of, the United States, and thus "foreign to the United States in a
domestic sense"). Balzac specifically ruled that the 1917 Jones Act extending U.S. citizenship to Puerto Ricans did not
imply congressional intent to incorporate the territory in order to make it a state. For a critical view, see Juan B.
Torruella, THE SUPREME COURT AND PUERTO Rico: TIE DOCTRINE OF SEPARATE AND UNEQUAL (1988). See also
Andrew Kent, Boumediene, Munaf and the Supreme Court's Misreading of the Insular Cases, 97 Iowa L.REV. 101
(2011), regarding recent application of the Insular Cases by the U.S. Supreme Court. For a succinct historical background and refreshing scholarly perspectives on the Insular Cases, see, Cristina Duffy Ponsa, Efr6n Rivera Ramos, and
Bartholomew H. Sparrow, RECONSIDERING TIl-E INSULAR CASES - PANEL I: HISTORY: PERSPECTIVES AND LESSONS, at
http://www.youtube.com/watch?v=aJMWX84bnoE (Harvard Law School, Feb. 19, 2014; published on You Tube, May 3,
2014).
4.
5.
2015]
Puerto Rico and the U.S. Congress: The Road Ahead
Since 1989, congressional silence regarding a permanent solution to Puerto Rico's

status has been significantly, though intermittently, interrupted in Washington by Republican
and Democratic political leaders in Congress and in the Executive branch. The committees
of jurisdiction in the House of Representatives and in the Senate have occasionally sought to
re-examine the anomalous relationship between both nations.
In the U.S. Senate, bill S. 712, "The Puerto Rico Status Referendum Act," introduced
by Senator J. Bennett Johnston (D-LA) in 1989, occupied center stage in the process of
deliberations until 1991. In 2013, that same committee, chaired by Senator Ron Wyden (DORE) held Oversight Hearings to analyze the results of a November 2012 referendum in
which a solid majority of the people of Puerto Rico expressly rejected the present territorial
relationship with the United States. Even though presidential leadership to seek a solution
has been weak, the White House has published periodic reports-in 2005, 2007, and 2011reiterating Puerto Rico's territorial status.' 0
This article argues, first, that these two proceedings in the Senate a quarter of a century apart have set the parameters for the elaboration of a policy to achieve a permanent
resolution to Puerto Rico's relationship with the United States. In 1989, congressional doors
were all but explicitly closed to the statehood movement. In 2013, the Senate oversight hearings removed the Cold War blanket used to cover up Puerto Rico's anachronistic subordination to the United States.
Second, between the aforementioned Senate proceedings, the spurts of legislative attempts in the House of Representatives have contributed to an emerging picture of what
needs to be done: Congress should dispose of the territory by recognizing Puerto Rico as a
sovereign nation-the only permanent, yet flexible, solution to this undemocratic, confusing,
and increasingly embarrassing problem.
ON THE ROAD TO THE ROAD AHEAD
Since 1989, Puerto Rico's territorial arrangement has been challenged. U.S. Senate
proceedings that year brought together the leaders of Puerto Rico's three political parties,
representing virtually all voters, to demand that Congress provide clear definitions of status
options that would be legally binding on the U.S. government.
10. See e.g. PmRSIENT's TASK FORCE ON PUEro Rico's STATUs, 2011 REPORTr at 66 (available at http://www
.whitehouse.gov/sites/default/files/uploads/PuertoRicoTaskForceReport.pdf) [hereinafter President's Task
Force];see also Exec. Order No. 13,183, 65 C.F.R. 82,889 (2000-2003), reprinted as amended in 3 C.F.R. 13,517 (2009)
(establishing the Task Force on Puerto Rico's Status by the Clinton administration). The Task Force has been retained
under the administrations of Presidents George W. Bush and Barack Obama.
[Vol. 21:31
Ten years later, after nearly six decades of military exercises placing Puerto Ricans'
lives at risk-and causing irreparable ecological damage-in the island-municipality of Vieques, a failed U.S. Navy maneuver killed a civilian worker and wounded several others. The
incident led the Puerto Rican Independence Party (PIP), which had denounced the situation
since its founding in 1946, to initiate a peaceful, civil disobedience movement, and set up a
protest camp on the Navy's firing range. PIP President Rub6n Berrfos' uninterrupted presence for 362 days in the target area evolved into massive demonstrations and acts of civil
disobedience by Puerto Ricans across a wide ideological spectrum.
Consensus grew and the public was outraged at the federal response. The U.S. district
court in Puerto Rico imposed arbitrary prison sentences, ranging from hours to months, for
exactly the same conduct. Hundreds of demonstrators-workers, professionals, religious and
political leaders, including the top leadership and main candidates of the PIP during an election year-were imprisoned for peaceful trespassing, the intent of which was to impede further military maneuvers in the Navy-controlled areas of Vieques. Wide-ranging public
pressure by Puerto Ricans of all religious beliefs and political ideologies-with support from
traditional U.S. allies in Latin America and Europe, as well as American political, religious,
and community leaders-prevailed. The Pentagon was forced to end decades of military exercises, threatening the health and safety of Vieques' 10,000 inhabitants,1 and consequently
closed Roosevelt Roads, the largest naval base outside the U.S. mainland in 2003.
Finally, in 2012, an unequivocal majority of Puerto Ricans voted in the previously
mentioned referendum, to reject the undemocratic nature of territorial status under the sovereignty of the United States. Deplorable as the contradictory notion of "colonialism by
consent" had always been, there could be no lingering doubt that the U.S. continued to rule
its Caribbean colony without the consent of its people in plain view of the international
12
community.
From his camp in the firing range of Vieques, before federal forces removed Rub6n Berrios and the PIP
11.
members who accompanied him, the president of the Independence Party wrote, in a hand-delivered letter to the U.S.
president through a mutual friend: "The Navy has perpetrated an ecological abomination in Vieques. Here, next to the
idyllic beach from where I write to you, lies a lunar wasteland of unexploded ordinance and depleted uranium-tipped
radioactive shells littered about in dead wetlands and lagoons, scorched earth, and devastated marine turtle nests."
Rub6n Berrfos Martinez, Letter to President Bill Clinton, July 21, 1999. See also, Rub6n Berrfos Martinez, "Bombs
Away-From Puerto Rico,"
THE WASHINGTON POST, MONDAY,
Nov. 1, 1999, at A27; and Manuel Rodriguez Orellana,
Vieques: The Past, Present, and Future of the Puerto Rico-U.S. Colonial Relationship, 13 BERKiLI;Y LA RAZA LAW J.
425 (2002) (an overview of the campaign for the demilitarization of Vieques in the context of the colonial relationship
between Puerto Rico and the U.S.).
12.
This development was inevitable, hastened-I believe-by the Puerto Rican governor's veto, which frustrated
a 2005 legislative attempt to hold a referendum calling for the U.S. government to respond to Puerto Rico's claim for a
self-determination choice among non-colonial and non-territorial options. The vetoed bill had been unanimously approved by the legislative delegations of the three parties-including the governor's, in spite of having committed himself, publicly and privately, to sign the bill into law. Article 3 would have required the government of Puerto Rico to call
a July 10, 2005 "YES" or "NO" vote on the following proposition: "We, the People of Puerto Rico, in the exercise of our
right to free self-determination, demand that the President and the Congress of the United States of America, within a
2015]
THE 1989-1991 PROCESS:
LONG AND WINDING ROAD
13
Puerto Rico today is still ruled by laws it has not enacted, bound by judicial decisions
of judges it plays no part in appointing, and restricted politically and constitutionally in commerce, trade, and international relations by an executive it does not elect.
On January 17, 1989, the presidents of the three principal political parties in Puerto
Rico met at La Fortaleza, the governor's mansion, and issued a joint statement. 14 In the most
significant expression of Puerto Rican national unity until then,1 5 they declared in a letter to
President George H.W. Bush and congressional leaders 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 U.S.] as to their choice of
their ultimate political status."' 6 They further requested that any such consultation "guarantee that the will of the people, once expressed, shall be implemented through an act of Congress which would establish the appropriate mechanisms and procedures to that effect."' 17
Representing virtually all voters, Puerto Rico's three principal political parties-the
Popular Democratic Party (PDP) representing the territorial arrangement called "commonwealth,"18 the New Progressive Party (NPP) seeking the island's annexation as a state of the
federal union, and the Puerto Rican Independence Party (PIP) advocating national sovereignty through independence-articulated a consensus that kept a process of status deliberations in motion longer than at any time in the previous 40 years.
period not greater than before December 31, 2006, express their commitment to respond to the claim of the People of
Puerto Rico to resolve the political status problem among fully democratic alternatives of a non-colonial and nonterritorial nature." Legislative Assembly of Puerto Rico, House of Representatives, Law of the People of Puerto Rico's
Claim for Self-Determination ("Ley de Reclamo y Autodeterminaci6n del Pueblo de Puerto Rico"), Substitute for bills
H.R. 1014, H.R. 1054, and H.R. 1058, 15th Legislative Assembly, 1st Ordinary Session (final text approved by the House
of Representatives, 17 March 2005). (Author's translation.)
13.
From 1989-1991, this author participated actively with the PIP in the process chronicled in this section. My
recollection of events and the documentation included were, in part, the basis for a talk I delivered at Yale University,
together with equally involved participants representing the other status options, two months after the process initiated
by Senator J. Bennett Johnston came to a halt.
14.
Rafael Herndndez Col6n, Baltasar Corrada Del Rio & Ruben Berrfos Martinez, Joint Declaration,in Po rriCAL STATUS Ri|ZFERENDUM - PROCESO PL BISCITARIO 1989-1991, 14 (Jos6 Roberto Martinez ed., Manuel Rodriguez-
Orellana trans., Puerto Rico Federal Affairs Administration 1992) [hereinafter,PRFAA 1992 DOCUMENTS].
15. See Berrios Martinez, supra note 11. A consensus regarding opposition to military maneuvers in and around
the island-municipality of Vieques had not yet formed in 1989. Neither had Puerto Rico's current territorial status been
repudiated as it was subsequently in the November 2012 referendum.
16.
17.
PRAAFA 1992 DOCUMENTS, supra note 14.

Id.
18. The name used in Spanish is Estado Libre Asociado, literally "Associated Free State." In both languages, the
name given the arrangement is equally deceptive of Puerto Rico's undemocratic status as a territory.
[Vol. 21:31
This budding 1989 consensus was itself an ascertainable signal of the existing dissatisfaction with the U.S.-Puerto Rico relationship. It also pointed to the inescapable conclusion
that Puerto Rico has been unable to validly exercise its basic human right to self-determination, in spite of the insistence by commonwealth leaders that, since 1952, this allegedly permanent territorial arrangement was the result of a "compact." No such compact could exist
between a sovereign United States and its subordinate territory, lacking sovereignty.
Between 1989 and 1991, congressional response, for the first time in more than a
century, seemed amenable to resolve the status problem. The Senate Committee on Energy
and Natural Resources worked with a bill introduced by Senator J. Bennett Johnston, its
chairman, that contemplated detailed definitions of status options to be automatically implemented after a referendum in Puerto Rico. 19 On the House side, the congressional leadership
focused on a process, different from that of the Senate.20 In what the wisdom of hindsight
now makes evident, the approach of the bill considered by the Subcommittee on Insular and
International Affairs of the House of Representatives was less controversial than the 1989
self-implementing Senate bill.
In 1989, Senator Johnston's bill was narrowly approved by his Committee and sequentially referred to the Senate Finance Committee, where it would encounter serious additional obstacles. By then, House leaders and advisors had correctly perceived that the Senate
bill's days were numbered, and introduced their own.
In October 1990, notwithstanding the governor of Puerto Rico's earlier insistence
that any federal legislation on status should legally bind Congress, 21 the House of Representatives approved H.R. 4765 by voice vote, without a floor debate. The "Puerto Rico SelfDetermination Act" was a non-self-implementing bill that buried brief summaries of status
definitions in the text of a subcommittee report, which went unnoticed by legislators. 22 Its
centerpiece was a provision that would make it incumbent on House and Senate bi-partisan
committees-in consultation with a Puerto Rico Dialogue Committee representing all three
parties-to devise implementing legislation after an initial vote. If there were no clear majority for any option, or if Congress failed to act within a limited time frame, the bi-partisan
23
committees of Congress would decide on subsequent legislation to be introduced.
Even though the self-implementing Senate bill died in committee, it permitted the
corresponding actors in the political establishment in the U.S. and Puerto Rico to begin to
focus on the need-and implications-of a post-Cold War revision of the relationship. In
19.
20.
21.
22.
23.
S. 712, 101st Cong. (1990)(specifically the status definitions in Titles 11, 111 and IV).
See Puerto Rico Self-Determination Act, H.R. 4765, 101st Cong. (1990).
PRFAA 1992 Documents, supra note 14, at xix.
See Puerto Rico Self-Determination Act of 1990, H.R. 4765, 101st Congress 4(a) (1990).
Id. 5-7.
2015]
both chambers, as events unfolded and the complexity of the situation underwent closer
scrutiny, it became increasingly clear that the federal government would have to devise a
new policy.
In 1989, the re-examination of the current status would adversely affect defenders of
the contradictory, elusive, and often incomprehensible commonwealth defined in its present
form, or in proposals for a "new," or "enhanced" version. This clash of frustrated formulations became patently clear almost twenty four years later at the Oversight Hearings discussed in greater detail below. In August 2013, during the question-and-answer period,
ranking Senator Lisa Murkowski (R-AK) engaged in the following exchange with Alejandro
Garcfa Padilla, the pro-commonwealth governor of Puerto Rico:
*..what I'm trying to understand is exactly what enhanced

Commonwealth is and the question really is whether or not it's consistent with the U.S. Constitution... But if our Department of Justice
should determine that enhanced Commonwealth does not, in fact,
meet with the definitions within our U.S. Constitution, doesn't fit
within that.(sic)We've got a situation here where you're going to
have a plebiscite that, again, is not going to be followed or upheld. 24
Advocates of statehood had already suffered a rude awakening a quarter of a century
before, as will also be further discussed. The contradiction between Puerto Ricans' expectations and what Congress would realistically consider is a consequence of the historical corner
in which the U.S. has painted itself by practicing colonialism while preaching democracy and
self-determination. Federal officials have too often shirked the responsibility arising from the
exercise of sovereign power over the territory, claiming that it was up to Puerto Ricans to
"get their act together. '25 In fact, it should be the other way around; Congress should articulate a solution, consistent with international law and the constitution and policies of the
United States.
Clearly not an innocent by-stander in colonial history, Congress must face the negligence of its actions regarding the island's subordinate status. While the Territory Clause 26 has
served to justify government without the consent of the governed, it also gives Congress the
power to justly resolve the situation by implementing fair options. International and Human
24.
Puerto Rico: Hearing Before the S. Comm. on Energy and Natural Res., 113th Cong. 27 (2013) [hereinafter
Puerto Rico: Hearing (2013)].
25.
This phrase has been commonly used by U.S. politicians to, knowingly or unknowingly, avoid facing Puerto
Rico's unresolved status.
26.
U.S. CONST. art. IV, 3, cl.2
[Vol. 21:31
Rights law27 dictates that, under the American constitution, the United States must guaran28
tee the Puerto Rican people's inalienable right to self-determination and independence.
THE AFTERMATH:
1991-2013
The 1989-1991 process came to a halt when the Senate Committee on Energy and
Natural Resources failed to approve Johnston's bill after the Finance Committee referred it
back. Since then, there have been periodic efforts to revive some form of status legislation in
the House of Representatives. Three such attempts deserve to be underscored because of the
status discussions they unleashed in Puerto Rico and in the corresponding Washington
circles.
Congressman Don Young (R-AK) introduced and eventually brought H.R. 856 to
the House floor where a spirited debate aired important concerns regarding Puerto Rico's
status. 29 Asserting congressional power over territories, the bill began to debunk the myth of
commonwealth as a permanent "compact" that could only be modified by mutual consenti.e., the United States could not change it, unless Puerto Rico consented. Instead, the transitory nature of commonwealth's non-sovereign status was highlighted by providing the territorial arrangement a life expectancy of 10 years if it prevailed. Then another vote would take
place, and so on.
On the historical impact and importance of developments in the field of Human Rights, see MARY ANN
27.
GLENDON, A WORLD MADE NEw: ELEANOR ROOSEVELT AND THE POLITICAL DECLARATION OF HUMAN RIGHTS
(2001) (a history of the development and reaction to "The Declaration of Human Rights"); Symposium, Latin America
and the International Human Rights Project: Yesterday, Today, and Tomorrow, Forum at the Pontifical University
Regina Apostolorum (Rome, Italy: May 2, 2008) (a discussion on the human rights tradition in Latin America). On the
connection of Human Rights and International Law, see also Carlos I. Gorrin-Peralta, Human Rights: Individual and
Collective Freedom for the Satisfaction of Human Needs, in 3 RESEARCH IN LAW AND POLICY STUDIES 109 (1995); and
Manuel Rodrfguez-Orellana, Human Rights Talk.. .And Self-Determination, Too!, 73 NOTRE DAME L. R. 1391 (1998)
(discussing the relation between human rights law and self-determination under international law).
The international law bases for self-determination can be found in the United Nations G.A. Resolution
28.
1514(XV), known as the Declarationon the Grantingof Independence to Colonial Countries and Peoples,U.N. GAOR,
15th Sess., 197th plen. Mtg. at 1, U.N. Doc. A/4686 (Dec. 14, 1960), complemented in certain aspects by U.N. GAOR
1541 (XV), U.N. GAOR Supp. (No. 16, U.N. Doc A/15/Supp. 16 (1960). See Western Sahara, Advisory Opinion, 1975
I.C.J. 12 (Oct. 16); see also International Covenant on Civil and Political Rights art. I, Dec. 16, 1966, S. Exec. Doc. No.
E, 95-2, 999 U.N.T.S. 171 (which states, in part, that "[a]ll peoples have the right of self-determination. By virtue of that
right they freely determine their political status and freely pursue their economic, social and cultural development.");
G.A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316/Annex (1966) (entered into force in
1976); also International Covenant on Economic, Social and Cultural Rights, which contains identical language in art. I,
Dec. 16, 1966, G.A. Res. 2200 & (XXI), Annex (entered into force in 1976); and Conference on Security and Cooperation in Europe: Final Act Art. 8, 73 Dep't St. Bull. 323-50; 14 I.L.M. 1292-1325 (1975) (which states that "all peoples
always have the right, in full freedom, to determine, when and as they wish, their internal and external political status,"
inter alia).
29.
United States Puerto Rico Political Status Act. H.R. 856, 105th Cong. (1998).
2015]
In the case of statehood, the Young bill raised red flags regarding the cultural difficulties that a Spanish-speaking Caribbean nation would face. It called for a transition that
would "include proposals and incentives" to increase English proficiency among Puerto Ricans, "inorder to promote and facilitate communication with residents of all other States...
and with the Federal Government," such as "teaching in English in public schools"-an attempt of nearly fifty years during the first half of the 20th century that had proved a pedagogic and political failure-and "grants to organizations . . .that have, as a purpose, the
'30
promotion of English language skills."
The bill also began to shatter the myth of the impossibility of independence. It provided for a constituent assembly, economic and programmatic assistance for a reasonable
period, retention of vested rights based on past services or previous contributions-such as
federal pensions, veteran services and social security benefits-a special "nonimmigrant status" for citizens of an independent Puerto Rico to visit or work in the United States, free
trade, and the eventual demilitarization of the Islands. 31 The bill passed the House 209-208,
but died in the Senate without further consideration.
Then in 2007, Representative Jos6 E. Serrano (D-NY), together with Puerto Rico's
Resident Commissioner, Luis Fortufio, introduced H.R. 900. With an impressive list of 129
bi-partisan co-sponsors that proved ineffective, the bill provided for a referendum that would
have given Puerto Ricans the choice to retain the status quo-in which case, again, new
referenda would have been required every 8 years-or a non-territorial option. In the event
of a majority vote for the latter, a subsequent plebiscite on non-territorial options would
provide a choice: either statehood, or sovereign nationhood under independence or in free
32
association with the United States.
Those in Congress and in Puerto Rico who opposed change labeled H.R. 900 "a
statehood bill" to secure its demise. Although favorably reported out of committee, the in-
30.
Id.
31.
32.
See H.R. REP. No. 105-131 (1998).

U.S. House of Representatives, H.R. 900, Puerto Rico Democracy Act of 2007, 110th Congress, 1st Session. A
companion bill was introduced in the Senate, S. 1936, but was never acted upon. The 110th Congress ended without the
bill passing either House or Senate. It should be noted that on the Executive side, the President's Task Force on Puerto
Rico's Status, created by President William J. Clinton (Executive Order 13183, Dec. 23, 2000), and amended by President George W. Bush, extending the deadline for the Task Force to forward a report to the President, had already
submitted two reports. See President's Task Force, supra note 10. Both suggested, among other things, a similar two-step
process in separately legislated referenda. If the territory were rejected in step 1, a subsequent act of Congress would
provide Puerto Ricans a choice among up to three alternatives: statehood, independence, and sovereignty under a pact
of free association. See, REPORT BY THE PRESIDENT'S TASK FORCE ON PUERTro Rico's STATUS (Dec. 2005) available at
http://charma.uprm.edu/-angel/Puerto-Rico/reporte-status.pdf and REPORT nY TrlE PRESIDENT'S TASK FORCE ON PURico's STATUS (Dec. 2007) http://www.justice.gov/sites/default/files/opa/legacy/2007/12/21/2007-report-by-thepresident-task-force-on-puerto-rico-status.pdf.7
ERTO
[Vol. 21:31
clusion of a statehood option raised concerns among Washington observers that it could
33
appear as if Congress were offering statehood without a petition from the territory.
Two decades after H.R. 476534 died subsequent to its approval by the House of Representatives, a third attempt at changing Puerto Rico's status was introduced. Pedro Pierluisi,
Puerto Rico's resident commissioner, introduced H.R. 2499 in 200935, similar to the SerranoFortufho bill of the previous Congress. After approval by the committee, Pierluisi's bill suffered a de-naturalizing amendment presented by Representative Virginia Foxx (R-NC) on
the House floor. Like its predecessor, H.R. 2499 proposed two plebiscites, sequentially. If
territory status did not receive a majority vote, the second plebiscite would include three
options: Independence, Sovereign Association, and Statehood. Congresswoman Foxx's
amendment re-inserted territorial commonwealth in the second plebiscite, even if that option
had been defeated. That contradictory amendment probably facilitated the bill's passage; but
after a pro-forma hearing in the Senate Committee on Energy and Natural Resources, the
bill died with the 111th Congress in 2010.
2013-2014:
A ROAD UNDER CONSTRUCTION
In 2013, Resident Commissioner Pierluisi again introduced another two-step status

bill, H.R. 2000 of 2013.36 This time, the first vote would approve or reject a petition for
statehood. If approved, the second step would require an admission bill. In spite of a longer
list of co-sponsors, it was generally considered "dead on arrival." Half-way through the 112th
Congress and only weeks away from the mid-term congressional elections, the bill had not
yet been considered by the House committee of jurisdiction, and there had been no movement on a companion bill in the Senate. Its prospects became even weaker after two developments emerged that were detrimental to the prospect of Puerto Rican statehood.
First, a March 2014 Report by the General Accountability Office 37 reiterated previous reports and analyses regarding Puerto Rico's limited capacity to provide revenues to
match the greater demand of federal funds that statehood would entail. Previous analyses
provided to congressional committees had been consistent in their assessments. For instance,
33.
See generally Puerto Rico Democracy Act of 2007 and Puerto Rico Self-Determination Act: Hearing on H.R.
900 and H.R. 1230 Before the Subcommittee on Insular Affairs of the Committee on Natural Resources, 110th Cong.
208 (2007).
34.
See Puerto Rico Self-Determination Act, H.R. 4765, 1Ost Cong. (1990)..
35.
The Puerto Rico Democracy Act of 2009, H.R. 2499, 111th Congress (2009).
36.
The Puerto Rico Status Resolution Act, H.R. 2000, 113th Congress (2013).
37.
U.S. Gov'T ACCOUNTABILITY OFFICE, GAO-14-31, PUERTO Rico: INFORMATION ON How SrATIHOOD
WOULI
PROBABLY ArmEcr SELECTE)
FEDERAL PROGRAMS AND REVENUE SOURCES (2014).
2015]
the General Accounting Office (GAO), 38 the Congressional Research Service (CRS)39, and
the Congressional Budget Office (CBO) 40 all coincided in their respective conclusions: statehood would always cost the American taxpayer more.
The second blow to statehood came as a consequence of the commonwealth's economic failure: the near insolvency of the Puerto Rican economy and a consequent fiscal crisis
that devaluated the once coveted, fully tax exempt Puerto Rican commonwealth government
bonds to "junk" status in 2014.41
38.
See LINDA G. MORRA, U.S. GOVT ACCOUNTABInITY OFFICE , GAO-14005, PUER'iO Rico: BACKGROUND
FFD. LEGISILATION, iTs GovIERNMENTAL STrUCURE, AND ITS FINANCES, (1989); U.S. Gov'T
ACCOUNTABILITY OFFICE?, HRD-89-104FS, PUERTO Rico: UPDATE OF SEILFC IFD INFO. CONTAINED IN A 1981 GAO
REPORT (1989); U.S. GOV'T ACCOUNTABILITY OFFICE, PUERTO RICO: INFO. FOR DELIBERATIONS, BRIEFING
INFO. ON AI'Pi'ICABI.
NOTE1300K FOR THE COMM.
ON ENERGY AND NATURAL RES. (1989).
39.
See U.S. Gov'T ACCOUNTABILITY OFFICE, HRD-90-70BR, PUERTO Rico: INFO. FOR STATUS DELIBERATIONS
(1990); CAROLYN L. MERECK, CONG. RESEARCII SURVEY, THE POLITICAL STATUS OF PUEiRTO RICo: ISSUES FOR WELFARE PROGRAMS (1989).
40.
CONG. BUDGET OFFICE, POTENTIAL ECONOMIC IMPACTS OF CIIANGES IN PUERTO Rico's STATUS UNDER S.
712, (1990), [hereinafter, CBO REPORT 1990].

41.
See, e.g.: Leader: Greece in the Caribbean, THE ECONOMIST (Ocr. 26, 2013), iiTI://www.ECONOMIST'.COM/
NEWS/LEADERS/21588374-s-iTUCK-RE Al -I)F'BT-CRISIS-1IS-BACK-YARD-AMERICA-CAN-LEARN-EUROPES-AFZGEAN;
Puerto
Rico's debt crisis. Puerto Pobre: A heavily indebted island weighs on American municipal bond market, THE ECONOMIST,Oct. 26, 2013, http://www.economist.com/news/finance-and-economics/21588364-heavily-indebted-island-weighsamericas-municipal-bond-market-puerto-pobre; Puerto Rico's sinking economy, TIlE WASHINGTON POST (Nov. 6, 2013),
h ttp://www. washingtonpost.com/opi n ion s/puerto-ricos-sinking-econom y-needs-h elp/2013/11/06/35 b93dac-4327-11 e38b74-d89d7l4ca4dd_story.html; Manilarock, Colonialism and Puerto Rico's Fiscal Crisis, http://www.manilarock.com/
news/colonialism-and-puerto-rico%E2%80%99s-fiscal-crisis (Apr. 4, 2014). Moreover, On June 26, 2014, for the second
time since February 2014, the Puerto Rico Electric Power Authority (hereinafter,PREPA), (in Spanish, "Autoridad de
Energfa El6ctrica" or "AEE"), probably the most important public corporation of Puerto Rico's government, had its
bonds down-graded to "below junk" status, by Ficht Ratings. Second credit down-grading against PREPA today
("Segunda degradaci6n crediticia en el d(a contra la AEE"), June 26, 2014 at http://www.elnuevodia.com/
segundadegradacioncrediticiaeneldiacontralaaee-1802151.html. Moody's Investors Service had previously done so, as
well. Moody's downgrades PERPA bonds again ("Moody's degradanuevamente los bonos de la AEE"), June 26, 2014 at
http://www.elnuevodia.com/moodysdegradanuevamentelosbonosdelaaee-802003.html.
Standard and Poor's followed
suit the next day. Standard& Poor'sdowngrades PREPA bonds (" Standard & Poor'sdegradabonos de la AEE"), June
27, 2014 at http://www.elnuevodia.com/standardpoorsdegradabonosdelaaee-1803108.html. Hardly two weeks later, in
what could be a fathomless culvert, PREPA's "junk bonds" sank even further. En route to the abyss:Standard& Poor's
new downgrading comes two weeks after Moody's took similar measures ("Ruta hacia el abismo: La Nueva degradaci6n
de Standard & Poor's surge luego de que hace dos semanas, la agencia Moody's lev6 a cabo una acci6n similar"), EL
VOCERO (July 10, 2014), p.4; also published at: http:l/issuu.com/vocero.com/docs/vO7lO2014/1?e=4670773/8564273.
Again, Moody's Investors Service further downgraded Puerto Rico's junk GO bonds, as well as those of important
public corporations, following the lead by Standar & Poor's the week before. The issued Report also warned of the high
possibility that the government might not be able to meet its financial obligations in light of Puerto Rico's slow economic growth, lack of liquidity, and the political uncertainty that a projected tax reform has generated.Ileanexis Vera
Rosado, Empeora el Credito de Puerto Rico [Puerto Rico's Credit worsens],PuertoRico's credit worsens ("Empeora el
crdito de PR"),Ei. VOCERO, Feb.ruary 20, 2015, at 4.
[Vol. 21:31
ROAD SIGNS FOR STATUS
The congressional process in the Senate Committee on Energy and Natural Resources in February 1991 had positive consequences, in spite of the deadlock that paralyzed
it. Subsequent developments in the House of Representatives reflected the Senate mood and
prompted the pertinent leadership in each congressional body to begin to articulate clearer
notions, if not about what it might be willing to offer, at least about what it would not consider as an alternative to territorial status. As a consequence, the signs on the road to
decolonization have become clearer and Congress must now analyze and ponder the experience to begin to seriously address the undemocratic nature of Puerto Rico's status.
The first lesson derived is self-evident: the life of territorial commonwealth is
terminal.
Second, notwithstanding ingratiating political declarations seeking the electoral favor
of "Latino voters," or the exuberant rhetoric occasionally spouted by grateful politicians in
Washington for quid pro quo campaign contributions, statehood for Puerto Rico is not on
the congressional agenda for the foreseeable future. Restraint should therefore be exercised
in Washington to avoid encouraging an embarrassing statehood petition, premised on the
illusion that statehood is an available option.
Third, sovereign nationhood emerged in 1991 as the only status that the United
States would be willing to grant without hesitation. A former governor and elder statesman
of Puerto Rico's statehood party, the late Luis A. Ferr6, recognized that Congress would
grant independence more easily than any other option. 42 In spite of the demonization and
43
persecution that the independence movement and its advocates had suffered for decades,
42.
FerrY, La lucha estd comenzando, EL NUEVO DIA, Mar. 8, 1991, at 63 (declaring "Si algo ha salido claro del
proceso en Washington, es que lo 6nico que el Congreso de Estados Unidos estdi dispuesto a darnos fdicilmente, es la
independencia") ["If anything is clear from the process in Washington, it is that the only thing the Congress of the
United States is willing to grant us easily, is independence"].
43.
Ivonne Acosta, a renowned historian, published an enlightening account of the political persecution to which
independence advocates were systematically subjected under legislation approved by the Popular Democratic Party and
its founder, Luis Muiioz Marn, in the late 1940s. This repressive legislation was dubbed "the Gag Law" by Leopoldo
Figueroa, ironically, a senator of Puerto Rico's Statehood Republican Party. See, IVONNE ACOSTA, LA MORDAZA
(1988). Although the law was repealed in the late 1950s, the persecution and discrimination by federal and commonwealth authorities against advocates of decolonization and sovereign nationhood continued for decades. The practice by
the governments of both Puerto Rico and the U.S. to keep dossiers on persons presumably subversive by virtue of their
political beliefs or identification with pro-independence and decolonization organizations has been well documented.
See generally, Noriega v. Gobernador, 122 P.R. Dec. 650 (1988) and Noriega v. Gobernador, 130 P.R. Dec. 919 (1992).
See also, Puerto Rico Senate, Report together with Additional Views of the Puerto Rican Independence Party Delegation,
Committee on Government and Federal Affairs, Vol. LI, Diario de Sesiones No. 1, 13th Legislative Assembly -Third
Special Session (Dec. 28, 2000), at 12224-12293. Prominent among the Report's findings was that, undeniably, the U.S.
Government and the government of the commonwealth had, for decades, interfered with the legitimate exercise of
Puerto Rico's right to self-determination. A historical note worth mentioning is that the request for the investigation,
2015]
the Cold War climate responsible for the obstacles on the road to self-determination in
Washington had begun to change. In the House of Representatives, the Young bill that began to unmask the territorial nature of commonwealth and intoned dirges for the aspirations
that the prevalent use of Spanish would continue under statehood, contributed to shatter
myths surrounding the independence option and lay the foundations for a fair transition to
an economically viable sovereign Puerto Rico.
Finally, as will become apparent, Congress must be compelled to decolonize-to exercise its constitutional authority under the Territory Clause and fulfill its human rights and
self-determination duty under international law, 44 and dispose of the territory. This requires
the awareness, attention, and willingness of Americans and Puerto Ricans, alike, to press for
congressional action.
COMMONWEALTH:
DEAD-END STREET
Commonwealth advocates' notions for "enhancement" of the territorial arrangement

can be convoluted and confusing. The proposal in S. 712 received scant public scrutiny in
1989. While the obstacles encountered by statehood received most of the attention, they
obscured what should have been a harbinger of things to come. On the very first day of
hearings of S. 712, J. Bennett Johnston's early exchange with Rafael Herndndez Col6n, the
incumbent pro-commonwealth governor, underscored some of the problems with his notion
of enhancement:
THE CHAIRMAN ....
The Commonwealth proposal does not
directly seek to limit congressional authority, but, on the other hand,
does not directly address the issue. The actual effects of this section
is (sic) unclear. It redefines the Federal/Puerto Rican relationship
under Commonwealth to limit congressional authority and
strengthen the argument that it is a "bilateral compact."
The U.S. law regarding Puerto Rico has traditionally used

such terms as "self-government" and "government by consent", not
such words as you used, such as "autonomous", which suggests
sovereignty.
introduced by the Puerto Rican Independence Party was unanimously approved and received by a pro-statehood majority Senate.
44.
See supra notes 27 and 28.
[Vol. 21:31
Now, my question is, what is your intent? Is your intent to

change the question of sovereignty?
GOVERNOR HERNANDEZ-COLON. No, the question of sovereignty as it stands today, would remain the same. That is, the United
States has sovereignty

over Puerto Rico and it would continue to
45
have sovereignty.
Herndindez Col6n's 1989 proposals for S. 712 were reiterated by Rafael Hernindez
Col6n even after the Senate's 2013 oversight hearings. In May 2014, he re-stated and summarized his proposals to amend the Law of Federal Relations. Under the sovereignty of the
United States, the "new" or "enhanced" commonwealth would be authorized to establish
custom duties or tariffs to protect local production, set maritime freight charges between
Puerto Rico and the United States, determine which foreign airlines may serve Puerto Rico,
control maritime resources in a 200 mile radius, confer rights of patents validly throughout
the United States for electronic products and industrial designs, give commonwealth control
over local and federal labor relations, grant Puerto Rico the authority to issue U.S. passports
and visas, as well as the power to act against illegal immigration, and enable the new arrangement to promote community values, such as the concerted adoption of regulations to limit
violence, pornography and advertisement of alcoholic beverages through television or
46
radio.
47
Hernandez Col6n insisted that the Law of Federal Relations enacted by Congress,
would be beyond the powers of Congress to change without Puerto Rico's consent. Thus, the
S. 712 modifications proposed in 1989-and re-asserted now-by Herndndez Col6n, both
reject sovereignty for Puerto Rico, and purport to limit the very U.S. sovereignty he would
45.
(1989).
Political Status Puerto Rico: Hearings before the Comm. on Energy and Natural Res., 101st Cong. 101-198
46.
Rafael Hernfndez Col6n, Governor of P. R., Mensaje en presentaci6n del libro Estado Libre Asociado (May
28, 2014), at 17 (transcript available at author's website http://www.rafaelhernandezcolon.org/Mensajes%201993%20al
%202011/2014/5.%20mayo/28%20de%20mayo%20de%20201 4%20-Presentacion %20del%201ibro%20Estado%2OLib
re%20Asociado%20Naturaleza%20y%20Desarrollo.pdf). The Spanish original, re-stating his proposal reads as follows:
.. Autoridad para establecer tarifas de aduanas para proteger nuestros productos, fijar fletes martimos entre Estados Unidos y Puerto Rico, determinar las lfneas a6reas extranjeras que puedan
servir a Puerto Rico, controlar los recursos marftimos doscientas millas a la redonda, otorgar derechos de patentes con validez en todo Estados Unidos para productos electr6nicos y disefios industriales, ejercer tanto la autoridad local como la federal en relaciones obrero patronales, emitir aquf
los pasaportes de Estados Unidos y visa a visitantes, tomar acci6n contra la inmigraci6n ilegal y
promover valores comunitarios como la adopci6n concertada por las estaciones de c6digos para
limitar la violencia, la pornografia y los anuncios de bebidas alcoh6licas a trav6s de la televisi6n o la
radio.
47.
See e.g. Organic Act of 1900, supra note 3; Organic Act of 1917 supra note 4; Act of 1950; supra note 6; Act of
1952, supra note 7,
2015]
not change, thus making the "new" commonwealth-at the very least-constitutionally
incomprehensible.
Furthermore, the post-war economic boom associated with the installation of commonwealth in 1952 was short lived. After decades of touting the arrangement under the
Federal Relations Act as a "showcase" or a "shining star," an unremitting economic recession, the consequent social decomposition, and a major financial crisis have unmasked Puerto Rico's territorial status as the junkyard of colonial failure. The social needs created by
the territory's economic growth model and the limitations of power inherent to the territory's political subordination have provoked massive migration and required increasing
transfers from the federal treasury. Until 2006, American pharmaceutical firms took advantage of federal tax incentives and the territory became what The Economist characterized as
"a vast medicinal maquiladora.
' 48
The territorial arrangement threatens the American taxpayers, unbeknownst to

them, with an open tab to keep Puerto Rico's unremarkable economy artificially afloat and
its population increasingly dependent on federal subsidies. As The Economist pointed out:
Puerto Rico has been in a recession since 2006, when legislation allowing a federal tax break for corporate income expired,
prompting many businesses to leave. As Puerto Ricans with prospects emigrate, the remaining population has aged and shrunk. The
government has run budget deficits (prohibited for states) for the
past decade, averaging 2.5% of GDP from 2009 to 2012. Its pension
fund is only 7% funded, which is abysmal
even by the standards of
49
other American states and territories.
Commonwealth's problems are deep and appear headed to a dead end:
The economy has big structural problems. Participation in the labour
force, at 41%, is some 20 percentage points below America's. The
island has the federal minimum wage, even though local productivity
and incomes are far lower than in the rest of America, creating a
strong disincentive to hire. Inflated benefit payments, for disability
for instance, discourage work. Moody's Analytics reckons the territory's bloated public sector accounts for 20% of employment, compared with 3.7% for the average state (though it provides some
services that the federal government would on the mainland).
Growth and investment
are hampered by bureaucracy, stunted infra50
structure and crime.
48.
Leader: Greece in the Caribbean,THE
49.
Puerto Rico's Debt Crisis, supra note 41.
50.
Id.
ECONOMIST
(Nov. 26, 2013).
[Vol. 21:31
Furthermore, on-going discussions in Capitol Hill's financial circles to eliminate special tax legislation for the territories have heightened the climate of uncertainty and eco51
nomic instability for prospective investors.
It is therefore not surprising that, on August 1st, 2013, a profound re-examination of
the commonwealth arrangement began. The Senate Committee on Energy and Natural Resources held the already mentioned Oversight Hearing on the significance of the November
2012 referendum that rejected the Island's territorial status. Senator Ron Wyden (D-ORE),
the Committee's chairman, read the following statement which swept away the last fig leaf
with which to hide the territory's colonial nakedness:
Puerto Rico has been an "unincorporated territory" of the United
States since the conclusion of the Spanish American War, 115 years
ago. After 115 years it is clearly time for Puerto Rico to determine
the political path it will take ...
Puerto Rico faces huge economic and social challenges. Per capita
income is stuck at about half that of the poorest U.S. state. The violent crime rate is well above the national average and rising. The lack
of resolution of Puerto Rico's status, not only distracts from addressing these and other issues, it contributes to them.
As the most recent reports from the President's Task Force on Puerto Rico's status found and I quote, "identifying the most effective
means of assisting the Puerto Rican
economy depends on resolving
' 52
the ultimate question of status.
The senator unhesitatingly concluded that "[tihe current relationship undermines our country's moral standing in the world". 53 Furthermore, he added, ". . .there is no disputing that a
majority of the voters in Puerto Rico, 54 percent, have clearly expressed their opposition to
'54
continuing the current territorial status.
In her opening remarks, ranking Committee member, Senator Lisa Murkowsky (RAK), concurred:
51.
See, Puerto Rico Reports, More U.S. Senators Object to Puerto Rico Luring Residents of States with Tax
Breaks, (Nov. 12, 2013), http://www.puertoricoreport.com/more-u-s-senators-object-to-puerto-rico-luring-residents-ofstates-with-tax-breaks/#.UpDldMSTi8A. "Earlier this year, a spokesman for the U.S. Senate Finance Committee said
that Chairman Max Baucus (D-Montana) was considering taking action in response to the new Commonwealth laws.
He said that this would be done in a comprehensive reform of Federal tax law that Baucus and the chairman of the
House of Representatives committee with jurisdiction over tax law hope to get enacted this Congress (which ends at the
beginning of 2015).
52.
Puerto Rico: Hearing, Supra note 24, at 1
53.
Id.
54.
Id, at 2.
2015]
Now that the plebiscite has been held it's clear to me that a majority
of Puerto Ricans do not favor the current territorial status as evidenced by the first question on the ballot.
.. what we learned is that the current status does not have majority
support. Beyond that I don't believe 5we
can draw any definitive con5
clusions about the plebiscite results.
STATEHOOD: WRONG TURN
Senator Murkowski's statement regarding the absence of "any definitive conclusions

about the plebiscite results" - beyond the fact "that a majority of Puerto Ricans do not favor
the current territorial status" - directly addressed statehood party President Pedro Pierluisi's
attempt at the 2013 hearings to rehabilitate the statehood option from the permanent damage inflicted in the 1989-1991 Senate proceedings. As with the commonwealth definition, the
first warning of what statehood would encounter happened early in 1989.
The proposal submitted then by statehood advocates in 1989 contained a provision
for English and Spanish to remain as official languages. Initially, former governors Carlos
Romero Barcel6 and Luis A. Ferr6 argued it was necessary to safeguard, in Mr. FerrYs
words, "our mother language." Their firm stand was short-lived. On the second day of hearings in the Committee on Energy and Natural Resources, Senator Johnston successfully
coaxed them to, "Just stay silent on the question of language," and not "risk this whole
'56
legislation over the issue of Spanish language.
Further warnings of a death foretold emerged at the hearing for the original bill's
markup. On August 2, 1989, there were several senatorial statements expressing "concern"
over making statehood too attractive, lest the District of Columbia erroneously conclude
that becoming a state was a viable option for the capital of the United States, as well.
There were also more explicit warnings. One of the most colorful came from Senator
Dale Bumpers (D-AR), a close William J. Clinton collaborator who subsequently defended
the President in his sadly famous impeachment trial. In the Committee on Energy and Natural Resources, Bumpers provided one heavy blow after another to the statehood provisions
55.
Id., at 3.
56.
U.S. Senate, Committee on Energy and Natural Resources, Hearings, Political Status of Puerto Rico, 101st
Congress (First Session), June 1 and 2, 1989, Part 1, at 364 et seq., esp. at 369-371. Johnston's statement is reminiscent of
Harry S. Truman's veto of Puerto Rican legislation in the 1940s requiring Spanish as the language of instruction in the
public schools system: "I base my disapproval, instead, on the untimeliness of the measure and my feeling that the issue
of Puerto Rican political status would be confused and its solution delayed by the adoption just now of a new language
policy." HARRY S. TRUMAN, Letter to the Governor of Puerto Rico Disapprovinga Bill Passedby the TerritorialLegislature (Oct. 26, 1946), at http://www.presidency.ucsb.edu/ws/index.php?pid=12535.
[Vol. 21:31
in S. 712. At the mark-up hearing, he expressly reserved the right to amend the bill on the
floor to require a super-majority for Puerto Rico's integration. Going one step further, he
reasoned, that while a simple majority was normally a good indication of the democratic will,
statehood implied a deeper kind of relationship, not unlike a marriage commitment. Carrying the analogy to its untactful extreme, the liberal Democrat from Arkansas argued that a
51% majority vote for statehood would be no more reassuring to him than his wife's promise
57
to be faithful in their marriage only 51% of the time.
The bill barely squeaked through. The opposition was bi-partisan. Its de facto leader
was Senator Malcolm Wallop (R-WY), the second ranking minority member. Subsequently,
58
it was referred to the Senate Finance Committee.
Even J. Bennett Johnston's standing among his peers made it next to impossible for
the Democratic leadership of either committee to bring the bill to a floor vote during the
101st Congress. Moreover, the Finance Committee, chaired by Senator Lloyd Bentsen (DTX), a former Democratic vice-presidential candidate, finally marked up S. 712 with drastic
changes. Title II of the bill-defining statehood and a self-implementing admission processwas inelegantly amended by Bentsen's committee to describe what would be a de facto second-class statehood, if statehood were considered at all. Under the amended version, appropriations for social welfare programs would be diminished under a formula of general
application to states, in which only Puerto Rico ended up with a lesser share than all others.
In practice, the amendment would make Puerto Rico a state of diminished-capacity.
Another damaging amendment to statehood, the only status option that would theoretically have been self-implementing, was adopted in the Finance Committee. The notion of
admitting Puerto Rico as a state at the beginning of an economic transition suffered a resounding and bi-partisan defeat. Instead, the amendment provided for a gradual phase-in of
benefits (de facto reduced, as previously noted) and a phase-out of territorial tax exemptions.
Admission as a state would occur at the end of the transition. The Finance Committee
amended and returned S. 712 to Johnston's committee, but refused to endorse the bill, even
with the Finance Committee's own amendments.
In 1991, at the end of the 101st Congress, ranking Senator James McClure (R-ID)
retired and Senator Johnston, still hopeful, visited Puerto Rico with the new ranking member, Malcolm Wallop (R-WY), and the soon-to-be chairman of the Republican Policy Com-
57.
Transcripts of mark-ups, although they exist, were reportedly not for public consumption. However, this markup hearing, which I attended, was televised live in Puerto Rico and Senator Bumper's humorous homily was the subject
of widespread commentary, political and ethical, for more than a few days. Puerto Rico Status Referendum Act: Hearing
on S.712 Before the Comm. of Energy and Natural Resources, 101st Cong. 101-120 (1989) (statement of Senator Dale
Bumpers).
58. COMM. ON FINANCE, PUERTO Rico STATUS REFERENDUM Acr, S. Ri-i'. No. 100-481 (1990).
2015]
mittee, Don Nickles (R-OK). They met with the leadership of Puerto Rico's three political
parties separately and privately. After these meetings, they publicly unveiled the new version
of S. 712, now S. 244, to be considered in the 102nd Congress. S. 244 incorporated the
amendments downgrading Puerto Rican statehood.
On the last day of that visit, Senator Wallop admitted the need for Congress to seriously consider options that it would actually be willing to entertain. Senator Nickles had
expressed his "reservations" because, to him, Puerto Rico was more a Latin American nation 59 than a territory in the statehood tradition.
A hearing took place on February 7, 1991. Attorney General Richard Thornburgh
presented the position of the executive branch regarding S. 244 and, although his testimony
was generally in favor of the bill, the official spokesman of the Bush Administration maintained resounding silence on its support for statehood. The amended bill expressed "a commitment ... to implement the status receiving a majority." The phrase "to implement" was a
clarification that underscored the non-self-implementing nature of this bill, in contrast with
the original idea of self-implementation in S. 712.
To some members, however, the terms were still a matter of concern. To avoid the
appearance of inviting a statehood petition, the legislative language was further diluted during the final mark-up on February 27, to a "moral" commitment, or a "good faith effort" "to
implement" the results.
The strongest push for statehood had initially come from George H. W. Bush, who
grew deafeningly silent as the process unfolded. His silence was a de facto indictment against
that status option in the Senate bill and a surprising contrast with what had been his campaign mantra in Puerto Rico:"iEstadidad ahora!" ("Statehood, now!"). 60 On February 26,
1991, the day before the final mark-up, the President himself expressed pro forma support in
a letter to J. Bennett Johnston for what by now was characterized and perceived by the
Washington establishment as a "statehood bill." He simply stated that, "Puerto Ricans deserve the chance to express themselves on what they want their political future to be." Under
59.
See, Una Apertura Hist6rica [A Historical Opening], PARTIDO INDEPENDENTISTA PUERTORIQUENO, http://independencia.net/index.php?option=com- alvideoshare&view=video&slg=una-apertura-historica&Itemid=1 16&lang=es
(documenting the 1989-1991 U.S. Senate proceedings on Puerto Rico's status in the U.S.). Eventually, at the final markup, he and Senator Wallop voted against the bill.
60.
U.S. national parties hold presidential primaries in Puerto Rico that are rather peculiar. Most Puerto Ricans
do not identify, nor consider themselves primarily, as either Republican or Democratic. Since Puerto Rico is not a state
and cannot vote for any of the candidates selected, these primaries-in which only a tiny fraction of the electorate feel
compelled to participate-are a form of political fantasy designed elsewhere to court a "Latino vote" of Latinos that do
not live there and whose problems are of a different nature from colonial subordination. See Partisan Puerto Rico?,
PUERTO Rico REPORT (July 09, 2014), http://www.puertoricoreport.com/partisan-puerto-rico/#.VN09PS6aU5Q (last visited Feb. 12, 2015).
[Vol. 21:31
the guise of urging senators to avoid thinking in partisan terms, he nevertheless alluded to
"other issues that have been raised on this bill-such as how many Senators one party might
elect if Puerto Rico ever becomes a State. . .." Omitting any reference to his ersatz embrace
"urged" Johnston to "act favorably on calling for

of statehood, the presidential letter merely
'61
[a status] referendum on the island.
Without vigorous presidential support and leadership, the bill would not pass. Thus,
after a bitter mark-up session on the amended version, S.244 died early in 1991. Nevertheless, J. Bennett Johnston's self-implementing initiative, with detailed definitions of the three
status options, had captured public attention. Legislative proceedings, while they lasted, increasingly revealed the concerns and fears of a growing critical mass of Washington leaders.
Statehood was not able to overcome congressional skepticism after the 2012 plebiscite in Puerto Rico, in spite of statistical calisthenics purporting a statehood victory. At the
oversight hearings of the Committee on Energy and Natural Resources in August 2013, its
members clearly understood that two questions appeared on November 2012 in a single
plebiscite ballot. The first question asked voters whether or not they wished to retain the
present territorial relationship with the United States, and a solid and indisputable majority
of 54% said "No." The second question invited voters to express a status preference for
independence, statehood, or "sovereign free associated state," correctly identified by Committee members as a sovereignty option, distinct from U.S. sovereignty. In the words of Senator Lisa Murkowski at that hearing, "The result of the second question, however, is not as
clear to me nor is it certain that any of the valid status options would receive a majority
vote. "62
Statehood really obtained 45% of all ballots cast. There were approximately 25%
blank votes on the second question, as urged by the pro-commonwealth governor, in the
single ballot sheet. Only by factoring out 25% of the tallied ballots-evidently not in favor of
statehood-could it be argued that statehood obtained 61% of the vote. Still, the ranking
Republican and the Democratic chairman sought to articulate a consensus position. They
suggested that in any future referenda, whether originating in the Puerto Rican legislature or
in the U.S. Congress, the vote should have, in the words of Senator Murkowski, "a format
that is fair to all valid options. ' 63 In her final statement at the hearing, she concluded that, "I
would agree with the Chairman that the process for determining what options will be on the
ballot and how they are defined is as critical as anything that we have discussed here
today. "64
61.
See PRFAA 1992 DOCUMENTS, supra note 14, at 117.
62.
Puerto Rico: Hearing, supra note 24, at 3.
63.
64.
Id.
Id. at 36.
2015]
According to Chairman Wyden: "The rejection [in November 2012] of the current
territory status leaves Puerto Rico with only two options: Statehood under U.S. sovereignty
65
or some form of separate national sovereignty.
Speaking for the national sovereignty option, Rub6n Berrios Martinez, president of
the Puerto Rican Independence Party, squarely addressed the issue:
I am well aware, however, that international and constitutional law
notwithstanding, Congress will not approve a plebiscite which includes a statehood option. The reason is simple. To offer such an
option would tantamount to an indirect statehood offer, were that
option to prevail in a plebiscite. A statehood option is the death
mark of any federally sponsored plebiscite simply because Puerto Rican statehood is contrary to U.S. national interests. 66
Berrfos Martfnez thus re-asserted his well-known view on the impracticability of the
statehood option. Known and respected throughout Latin America for decades as leader of
the independence movement, at the same time an immensely popular minority senator in
Puerto Rico, several times re-elected with more votes than all other senators, and a Yale and
Oxford educated professor of International Law has long espoused that position in political
and academic publications. 67 What was significant, although not surprising, is that his assertion, thrice stated during the hearings was never contradicted. Instead, it was received with a
68
silent but tacitly acquiescent senatorial smile.
Certainly, there are powerful economic, social, political, and cultural reasons, from
the perspectives of both Puerto Rico and the United States, for opposing statehood. The
serious economic dislocation which statehood would entail for Puerto Rico's growth and
development has been amply documented by various economic studies, including the General Accounting Office and the Congressional Budget Office, as noted above. 69 Furthermore,
after the economic failure of the commonwealth model, the economic impact of a raciallymixed state, far poorer than the poorest state of the Union, with a possibly larger Congressional delegation than half of the states, has begun to be analyzed and slowly digested by the
congressional delegations that would have to settle for diminished clout and a smaller piece
of the budgetary pie, not to mention the competition for greater appropriations among ethnic and other minorities with divergent interests.
65. Id., at 2.
66. Id., at 23.
67. See, e.g., Rub6n Berrfos Martfnez, Puerto Rico's Decolonization,76 FOREIGN. AFF. 100 (1997); Independence
for Puerto Rico: The Only Solution, 55 FOREIGN AF-. 561 (1977).
68. SeePuerto Rico: Hearing supra, at 33, 35, and 39 (Unfortunately, the transcript cannot show facial expressions).
69. See supra notes 36-39.
TEXAS HISPANIC JOURNAL OF LA W AND POLICY
[Vol. 21:31
As a state, Puerto Rico would lose it distinct identity. The only way out of an ethnic
ghetto in the United States is through cultural assimilation into the Anglo-American mainstream, which would subordinate the island's Spanish language and distinct culture.
[T]he language policies and the political status of the island,
were perhaps the most hotly debated topic in Puerto Rican society
from 1903 to 1952. For some these issues were inseparable. The attempts by the United States to impose English as the vernacular in
Puerto Rico and the response to this effort by the people of the island had extraordinary7 0influence on the political, legal, cultural and
educational panorama.
Logically, the obvious differences between Puerto Rico and the thirty-seven territories admitted as states after the original thirteen colonies became an independent nation
cannot be overstated.7 1 Except for Alaska and Hawaii, which are geographically non-contiguous, the rest were territories settled by Anglo-Americans moving west. 72 These became
states when they had a sufficiently numerous population and enough resources to be admitted, without becoming a fiscal burden on the U.S. treasury.
Native Alaskans were apparently not considered numerically significant to be an obstacle to American settlers. Hawaii's native population and culture, by the time the islands
became a state, had been diluted by immigrants from islands in the Pacific, Japan, the Far
East, and the U.S. mainland. When statehood was granted, its population-less than onefifth of which was Native Hawaiian-had coalesced around the Anglo-American culture and
way of life. Making the Hawaiian dialect an official language made no difference, since no
significant part of daily life was conducted in any language other than English. Today, a small
fraction of the population claims the Hawaiian language as their vernacular.
Puerto Rico is different in every respect. It is not an isolated piece of real estate
inhabited by nomadic tribes and, since the early 19th century, Puerto Rico has been very
much a part of political and economic developments in a region-the Caribbean-that plays
a distinct historical role within the larger context of Latin America. Spanish-speaking for
70.
Pablo Navarro-Rivera, The University of Puerto Rico - Colonialismand the Language of Teaching and Learning: Introduction, 1 JOURNAL OF PEDAGOGY, PLURALISM, AND PRACTICE (1999), http://www.lesley.edu/journalpedagogy-pluralism-practice/pablo-navarro-rivera/coloniaism-teaching-earning/.
An exhaustive 2-volume legal and historical analysis of the admissions processes of those is contained in the
71.
law journal published by the Puerto Rico Bar. See Ratl Serrano-Geyls and Carlos I. Gorrin-Peralta, Puerto Rico y la
estadidad,40 REV. COL. AB. P.R. 5 (1979); 41 REV. COL. An. P.R. 1 (1980).
72.
Native Americans were not an obstacle. It is well known that, notwithstanding embellished accounts of heroic
frontiersmen, Native Americans were decimated by the explorers' genocidal zeal as they moved west, suppressed by
federal militia, and had their culture ridiculed. These encounters were distorted through the mythical prism of legendary
adventures of "cowboys and Indians."
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over 400 years, Puerto Rico became sufficiently differentiated in its culture as to begin its
quest for independence by the mid-19th century. It became distinct from Spain, and never
anglicized.
Immigrants to Puerto Rico-whether Americans, Cubans, Dominicans, Argentinians, or Iberian Spaniards-eventually become "Puertoricanized," without losing pride for
their country of origin, just like immigrants to the U.S. eventually become "Americanized"
and "melt" into the legendary pot or become part of the metaphorical "quilt." Puerto Rico
thus passes the test of a nationality that absorbs other immigrants. Puerto Rico's historical
reality as a nation is expressed in a variety of ways. After more than one-hundred years of
subordination to U.S. sovereignty:
Puerto Ricans remain a distinct and homogeneous Latin American
nationality. Spanish is the only language of common understanding
as well as of high culture, and less than one-third of the population
understands English, even as a foreign language. Renowned Puerto
Rican writers, painters, and other artists, heirs to a distinguished centuries-old tradition, have made significant contributions to twentiethcentury Latin-American culture. Our folklore and popular arts, a
rich blend of the island's Spanish, African, and Taino inheritance,
and Caribbean customs and traditions contribute to our national culture, proud 73 and defiant even under the constant threat of
assimilation.
Puerto Rico's language and distinct culture are therefore indispensable for Puerto
Ricans under any status formulation.7 4 The presidents of Puerto Rico's three principal political parties, among other civic, cultural, religious leaders, and intellectuals, addressed a letter
to the congressional leadership declaring that the Spanish language is "not negotiable under
'75
any circumstances or political status.
73. Berrios Martfnez, Puerto Rico's Decolonization supra note 68, at 108-109.
74. Although there is no official language at the federal level, Puerto Rico's Hispanic identity and its refusal to
yield to Anglo-American language and culture has been a source of concern to U.S. authorities. Again, "attempts by the
United States to impose English as the vernacular in Puerto Rico and the response . . . by the people of the island had
extraordinary influence on the political, legal, cultural and educational panorama." Navarro-Rivera, supra note 71. Also,
as noted before, J. Bennett Johnston's admonition to statehood leaders in 1989, not to risk S. 712 over the language issue
is reminiscent of Harry S. Truman's veto of Spanish as the language of instruction in Puerto Rico's public schools in
1946. See Truman, supra note 57.
75.
Rub6n Berrfos Martinez, supra at 108. The full text of the declaration appears in Awilda Palau, Epilogo para
un nuevo p6logo. La batallapor la reafirmaci6ndel idioma espafiol (San Juan, Pueto Rico 1992), at 129. See also Awilda
Palau, Report from the Front. A Short Term Community Action Campaign to Gain Explicit Consensus about Vernacular
Language in Puerto Rico, in Carmelo Delgado Cintr6n, Problemasjuridicos y constitucionales del Idioma espafiol en
Puerto Rico (Ed. Rev. Colegio de Abogados 1990), at 153.The phrase that "Spanish is not negotiable" appears for the
first time in the pro-statehood New Progressive Party Platform (1976), at 1; and Carlos Romero Barcel6, La estadidad es
para los pobres (1976). Another, subsequent pro-statehood governor, Pedro Rossell6 also declared that "Spanish be-
[Vol. 21:31
For the United States, Puerto Rico's linguistic and cultural distinctness are a source
of concern, in the case of a statehood petition. Federalizing English as the official language
of the United States is a permanently simmering issue in the congressional backburner. The
idea of statehood with non-negotiable conditions, such as Puerto Rico's use of its vernacular
is unlikely to provoke much enthusiasm in Congress. Even Chase Untermeyer, George H.W.
his boss's
Bush's presidential assistant on matters concerning Puerto Rico, conceded that
76
discreet support for statehood was, even then, a "somewhat solitary" position.
The failure of a substantial sector of the population of Latin Americans, particularly
Puerto Ricans, to be assimilated into the American mainstream can logically raise questions
regarding Puerto Ricans' willingness to actually integrate, even under statehood. Less than a
year after the 2013 oversight hearings in the U.S. Senate, the president of Puerto Rico's
statehood party and incumbent resident commissioner, Pedro Pierluisi reaffirmed the indispensability of Puerto Rico's language and culture under any status formulation.
"If they tell me," he said, "that I have to abandon my culture and stop speaking
'77
Spanish, I'll tell them that I am not interested in integrating.
Secessionist movements in Ireland and Scotland within the United Kingdom, Catalonia and the Basque country within the Spanish State, and Quebec on the Canadian side of
the United States' northern border are but a few reminders of the permanent instability
created by annexing distinct nations into unitary or federal systems. In the case of Puerto
Rico, legal gymnastics which argue the feasibility of integrating a sociologically and culturally distinct nation into the American union are unrealistic. The unilateral extension of U.S.
citizenship in 1917, in spite of the unanimous opposition of Puerto Rico's elected representatives in the House of Delegates, has not changed our distinct cultural and historical configuration as Puerto Ricans. It merely changed our passports.
The central question is, undoubtedly, civic-not economic. The late Senator Patrick
D. Moynihan, consummate politician and scholar, recognized this in a speech before the U.S.
Senate. The real issue, he said, is whether Puerto Ricans wish to become Americans. "For
longs to all Puerto Ricans, it is not negotiable under any circumstances or political status," in James P. Lubinskas, The
Threat of Puerto Rican Statehood, AMERICAN RENAISSANCE (March 1998), at http://www.amren.com/news/2009/05/
thethreat-of_p/; and Doreen Hemlock, Gobierno de Puerto Rico se solidariza con el 'Dia Nacional del Idioma Espa-
fIol', TbE SAN JUAN STAR (April 17, 1989) at 8, (reporting that the pro-commonwealth administration (1985-1991) in
power at the time agreed with this position).
76. Salom6 Galib Brds, Bush apoya adn la consulta, EL NUEVO DIA, Mar. 25, 1991, at 8.
77.
"Si me dicen que tengo que abandonarmi cultura y dejar de hablar espaflol les digo que no me interesa in-
tegrarme," Pedro Pierluisi, President of the New Progressive Party (pro-statehood), re-elected Resident Commissioner
in 2012, Entrevista, in EL NUEvo DfA, (June 17, 2014).
2015]
that," he stated, "is what statehood ineluctably implies." Or, he asked, whether they wish to
'78
retain "a separate identity.
Undoubtedly, he knew the answer.
SOVEREIGN NATIONHOOD: WHERE THE ROAD SHOULD LEAD
Independence has been an option for Puerto Rico since the Lares Uprising proclaimed it a republic in 1868. The Republic was short-lived under Spanish rule for the same
reasons the multiple efforts of Puerto Rican freedom fighters did not succeed under American sovereignty: Since the Spanish-American War of 1898, Puerto Rican independencewith or without electoral support 79-was perceived as contrary to U.S. national interests.
With the end of the Cold War and the internationalization of trade and commerce since then,
that perception, if it was ever true, is no longer tenable.
The substantive international law requirement embodied in U.N. General Assembly
Resolution 1514 (1960), the magna carta of decolonization, "[to] end... colonialism in all its
manifestations"80 cannot be met by purely cosmetic "enhancements" to territorial commonwealth, or the juridical faqade of statehood. As the 19th century Cuban patriot and poet, Jos6
Martf, would phrase it:
78.
Patrick D. Moynihan, The End of the Cold War and the Question of a New World Order: Three Statements
from the Senate Floor, U.S. Senate, Congressional Record, S. 17786 (October 27, 1990).
79. Independence has enjoyed widespread electoral support at various times throughout Puerto Rico's history.
For instance, the Union Party, which won every election between 1904 and 1928 by a majority, always contained a proindependence platform. See Bolivar Pagan, HisToRIA D1 LOS PARTIDOS POI-COS PUERTORIQUEiros 1898-1956: ToMo
I, 113-133 (1972). However, the economic crisis of the Great Depression, the colonial straitjacket limiting Puerto Rico's
economic and political options, and repressive federal policies began to erode the electoral support for independence.
Still, in the 1932 elections, the electoral successor to the Union Party, the Liberal Party, was the single party with the
highest number of votes (43.6%), with a platform for outright independence. In the 1936 elections, as in 1932, the
Republican-Socialist Coalition's platform (this time including both independence and statehood as acceptable goals)
won by a mere .08% of the vote over the Liberal Party's independence platform. See Id.
at ToMo II, 1-116; see also Amy
Thornbury, Chapter 7 - Statehood for Puerto Rico in the Thirties: Close, But No Cigar, GRATis BOOKS. COM, at http://
www.gratisbooks.com/pchapdet.php?chapterid=87 (last visited Sept. 24, 2014) (a margin of victory of 45,000 votes out
of a total of 549,500 votes cast). After the electoral successor to the Liberal Party, the Popular Democratic Party,
declared independence programmatically incompatible with its platform, the Puerto Rican Independence Party (PIP)
was formed and became the second largest party in the 1952 elections-the year of the adoption of the adoption of the
territory's constitution. See El Archivo de las Elecciones en Puerto Rico, Ei ECIroNS PUERTO Rico, http://electionspuertorico.org/archivo/1952.html (last visited Sept. 24, 2014). Political discrimination, repression, and persecution, and economic dependence, as discussed before, account for the current electoral minority of the PIP and the independence
movement.
80.
U.N. GA OR, 15th Sess., supra note 28
[Vol. 21:31
[Some people].. .are blind to the fact that ideas, like trees,
must come from deep roots and compatible soil in order to develop a
firm footing and prosper, and that a newborn baby is not given the
wisdom and maturity of age merely because one glues on its smooth
face a mustache and a pair of side burns. Monsters are created that
way, not Nations. 81
Much of what transpired at the August 1st, 2013 Senate hearing had been said before
in congressional proceedings during the past two decades. The difference with previous official expressions regarding Puerto Rico's status is that, for the first time under U.S. colonial
rule, the congressional door seems to be closing on the current commonwealth arrangement
or any other form of territorial status-a regime that undermines, as Senator Wyden pointed
82
out, the moral standing of the United States, internationally.
81.
Jos6 Marti, The Truth about the United States (1894), reprinted in TilL JOSiE MARTI READER: WRIINGS
THE AMERICAS
ON
184, 187 (Walter Lippmann Ed., 2006).
82. An unprecedented expression of international support for Puerto Rico's decolonization and right to independence came from the Congress of Latin American and Caribbean States ("Congreso de Estados de Latinoamerica y el
Caribe," hereinafter CELAC), where all Latin American governments are represented. Since January 2014, CELAC has
placed Puerto Rico's self-determination and independence on its permanent agenda. This declaration by Latin American heads of state followed other not-so-subtle messages that the international community-particularly, Latin
America-has been sending Washington regarding Puerto Rico's colonial condition. In November 2006, 33 political
parties (frequently in government) from 22 Latin American and Caribbean nations representing a wide ideological
spectrum gathered in Panama City, Panama, to attend the Latin American and Caribbean Congress in Support of
Puerto Rico's Independence. Panama requests Latin America to support Puerto Rican independence, DOMINICAN ToDAY, Nov. 19, 2006, http://www.dominicantoday.com/dr/world2006/l 1/19/19804/Panama-requests-Latin-America-to-support-Puerto-Rican-independence [hereinafter Panama Requests]. This Congress unanimously reiterated "our solidarity
and support for the cause of Puerto Rico's independence, a historic and principled claim of our America," adding that,
"Latin America and the Caribbean will not be truly independent until all its nations are." Panama's incumbent president, Martin Torrijos, delivered the keynote address. Panama requests, supra note 84.The event was preceded by numerous resolutions over the years, in support of Puerto Rico's right to self-determination and independence by associations
of political parties from the Hemisphere and beyond, such as the Permanent Conference of Latin American Political
Parties ("Conferencia Permanente de Partidos Politicos de Amdrica Latina," COPPPAL), and the Socialist International
[SI], the world-wide association of social democratic parties and organizations. More recently, the SI Council met in
Mexico and, in its Declaration regarding Puerto Rico, (Mexico City, June 30-July 1, 2014) created a task force of six
major parties from Argentina, Mexico, and Nicaragua, chaired by Rub6n Berrfos, President of the Puerto Rican Independence Party and Honorary President of the St. Socialist Int'l, Declaration on Puerto Rico. The purpose of this task
force is, among other things, to become "a driving force for concerted action" to fulfill the objective of having the
General Assembly of the United Nations finally examine "the colonial case of Puerto Rico... in light of Resolution
1514(XV)," supra note 81. Shortly thereafter, the U.N. Special Committee in Charge of examining the Situation regarding the Application of the U.N. Declaration on the Granting of Independence to Colonial Countries and Peoples (hereinafter, "Decolonization Committee") re- examined the Case of Puerto Rico and heard testimony by various
international personalities, including Greece's Georgios Papandreou, its former head of state and current President of
the SI. In its unanimous decision, the Committee, among other things, took note of the 2012 referendum in which Puerto
Ricans rejected the present status of political subordination, urged the General Assembly to re-examine the case of
Puerto Rico, and exhorted the U.S. Government to "expedite a process that will allow the Puerto Rican people fully to
exercise their inalienable right to self-determination and independence" Press Release, General Assembly, Special
Committee on Decolonization Adopts Text Calling on United States to Expedite Self-determination Process for Puerto
Rican people, (A/AC. 109/2014/L.6, June 18, 2014.) Consistent with the M6xico City Julyl, 2014 SI Declaration on Puerto
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Wyden's assertion has deep significance and wide-ranging foreign policy implications
for United States-Latin American relations.8 3 Annexation as a state, for instance, would antagonize a vital, democratically energized Latin America that has always viewed Puerto Rico
as one of its own. An attempt to incorporate Puerto Rico as a state would be regarded as an
affront, as a new wave of U.S. imperial expansion, causing long-term damage to hemispheric
peace and security.
In the words of President Martin Torrijos of Panama, the keynote speaker at the
Latin American and Caribbean Congress in Solidarity with Puerto Rico's Independence held
in Panama City in November 2006:
[T]he basic problem is that Puerto Rico is the only Hispanic American nation that remains under a colonial regime. For Latin Americans, forever correcting this anomaly must be a matter of principle
and a priority of continental proportions. What remains is to agree
the Puerto Rican right to constion whatever is necessary to solidify
84
tute an independent republic.
It is not just because several key members of Congress have whispered or dreamt
about it privately; or even because independence is the natural expression of a people's selfdetermination, the most fundamental of Human Rights. Congress would grant independence
because it does not conflict with U.S. national interests to do so. Territorial status does.
Rico, supra, of appointing a task force to become "a driving force for concerted action" to fulfill the objective of having
the General Assembly of the United Nations examine the colonial case of Puerto Rico, Nicaragua, a member of said
task force and of the Latin American and Caribbean Congress of States (CELAC), yielded the floor to Puerto Rican
independence leader Ruben Berrios Martinez. The president of the PIP urged CELAC members to act in support of a
United Nations General Assembly re-examination of the colonial status of Puerto Rico and the release of Puerto Rican
political prisoner, Oscar L6pez, who has been in a U.S. prison for 34 years. See e.g. Zach Dyeer, Puerto Rican independence front and center at CELAC, Tico Times (Costa Rica, January 29,2015), http://www.ticotimes.net2015/O1/29/puertorican-independence-front-and-center-at-celac;Celac: Ortega ataca a EEUU y Santos alaba el proceso de paz en Colombia,
Diario Las Am6ricas (Miami, Florida, January 31, 2015), http://www.diariolasamericas.com/4849_centroamerica/
Lider independentista pide ante la Celac
2925186_ortega-ataca-eeuu-cede-turno-celac-independentista-puerto-rico.html;
cese del colonialismo en Puerto Rico, Hoy Venezuela (January 28, 2015) http://hoyvenezuela.info/lider-independentistapide-ante-la-celac-cese-del-colonialismo-en-puerto-rico/;Jos6 Delgado, Habla el presidente del PIP en la cumbre de CELAC: El president de Nicaragua le cedi6 el turno a Rubdn Berrios, (San Juan, Puerto Rico, January 28, 2015) http://www
and InterNewsSer.elnuevodia.cormnoticias/internacionaes/notahablaelpresidentedelpipenlacumbredecelac-2000878/#;
vice, Ruben Berriosprotagoniza choque verbal: El presidente Solis aclar6 que no se trat6 de afectar ni cortar su mensaje,
sino respetarel orden establecido, El Vocero (San Juan, Puerto Rico, January 28, 2015) http://e/vocero.com/ruben-berriosprotagoniza-choque-verba/.
83.
See Puerto Rico: Hearing before the S. Comm. on Energy and Natural Res., supra note 54 (Senator Wyden's
statement regarding the adverse effect of Puerto Rico's colonial status on the moral standing of the United States).
84.
Martin Torrijos, President of Panama, Keynote Address at the Latin American and Caribbean Congress in
Support of Puerto Rico's Independence (Nov. 2006), supra note 84.
[Vol. 21:31
The territorial arrangement simply has not worked. As phrased by The Washington
Post, ". .Puerto Rico's economic and financial woes are structural - traceable, ultimately,
to its muddled political status... "85 Considering Puerto Rico's infrastructure and capacity for
skilled and semi-skilled labor, Puerto Rico stands in better shoes for achieving economic
prosperity than other nations in recent history, prior to achieving independence. 86 Long-term
tax and commercial treaties with a sovereign Puerto Rico would provide the necessary confidence and stability for beneficial trade relations and a healthy investment climate. Under
independence, the United States could avoid the destabilizing risks of commonwealth's political powerlessness and increasing economic dependence.
As far back as the 1970s, the failure of the industrialization by invitation model was
evident. In the 1980s, the elimination of Section 936 tax-sparing provisions of the Internal
Revenue Code (IRC) was already under way. These IRC provisions were deemed ineffectual
and contrary to U.S. interests. By 1990, when the Congressional Budget Office examined the
Puerto Rican Independence Party's economic proposals under S.712, it concluded that independence could provide adequate mechanisms to substitute-and in some instances, improve
upon-existing tax legislation for territories with regards to foreign investment. 87 By 2006,
the late scholar and White House consultant to the Carter Administration, Juan M. GarcfaPassalacqua observed that, "what is dead is the economic colonial relationship of Puerto
Rico with the United States. 8 8 He added succinctly:
*..Our colonial economic model of industrialization by invitation collapsed after it became an ideology. It has to be abandoned
now. The one and only way for Puerto Rico's economy to get out of
the doldrums is to obtain the required sovereign powers to be able to
85.
See, Puerto Rico's sinking economy, THE WASl. Posr (Editorial) (November 6, 2013). See also, Puerto Rico's
Debt Crisis:Neithera state nor independent, Tiii- ECONOMIST (Jul. 5, 2014), available at http://www.economist.com/news/
united-states/2160631 9-how-territory-falIs-between-bankruptcy-regimes-neither-state-nor-independent. In both, the article ends as follows: "As the 51st state, its state-owned firms would be covered by the federal bankruptcy code. As an
independent country, it could set its own rules. Under the status quo it may be stuck with neither."
86.
See, Francisco CatalA Oliveras, Production, Dependence, Crime and Fear, El Nuevo Dfa (Oct. 7, 2000); La
economia de Puerto Rico: del enclave colonial al imperativo de la Independencia ("Puerto Rico's Economy: From Colonial Enclave to Independence as an Imperative"), in PUERTO Rico: NACION INDEPENDINTEL IMPERATIVO DEL SIGLO
XXI, (San Juan, Puerto Rico: 2010), (hereinafter, PUERTO Rico: NACION INDEPENDIENTE), at 47-98. See also, Rubdn
Berrios Martinez, Puerto Rico's Decolonization, (FOR. A] .1997), n. 62, supra, at 111.
CBO REPOiRT 1990, supra note 39, at 24 ("Puerto Rico could, however, offer several tax-related advantages
87.
that might effectively replace those available under its current status... [T]he new nation would have the opportunity,
unavailable under current status, to negotiate tax-sparing treaties making investments by corporations of third countries
more attractive...").
88.
Juan M. Garcfa-Passalacqua, All economists are missing the point, THE SAN JUAN STAR (May 14, 2006), at 64.
Garcia-Passalacqua was a political analyst and lecturer at Yale University who had served as consultant to the National
Hispanic Advisory Group to President Jimmy Carter.
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insert our island in the world's globalization trend. The only model
that will work is the abolition of American sovereignty...89
Separate sovereignty is the most flexible and convenient way of harmonizing U.S.
and Puerto Rico's national interests in a new relationship. The current difficulties in steering
Puerto Rico toward the natural path it should have followed after the Spanish American
War-the road not taken-have been fed by myths that have perpetuated and aggravated
the status problem. After Spain lost its last imperial possessions in the Americas in 1898,
those serving the interests of colonial domination reinforced a mentality of subordination
and dependence.
Self-determination opponents incorrectly-and sometimes, maliciously-insist that
national sovereignty entails becoming "enemies" of the United States; that the U.S. would
senselessly close its borders to profitable commerce and trade with a former colony, in spite
favorable precedents set by international trade agreements between European powers and
their former African, Caribbean, and Pacific former colonies-the ACP nations. 90 The 21st
century globalization of trade makes such arguments ludicrous. Additionally, adversaries
contend that independence would forever prevent Puerto Ricans and their relatives in both
countries from visiting each other, even though non-immigrant status has been extended to
non-U.S. citizens to live and work in the United States. Furthermore, the United States has
adapted to flexible international law developments regarding citizens of various countries
with dual and reciprocal nationalities. 91 As already proposed in previous legislative attempts, citizens of a sovereign Puerto Rico could visit, live, and work in the U.S.92 Equally
absurd was the prevailing Cold War propaganda that all but assured "invasions" by elements
of an "evil empire" waiting to take over as soon as a sovereign Puerto Rico joined the international community.
The reality is that Puerto Rico's basic problem is economic stagnation and dependence on U.S. subsidies. Independence would "release the full spiritual energies of a nationality whose self-esteem has been trampled on [and] clear the way for a modern, forwardlooking society, open to all cultural influences but subject to none and proud of its own. ' 93
For the United States, Puerto Rico's separate sovereignty would, not only curtail the
drain on the federal treasury but, bring to an end the contradiction between pretending to
89. Id.
90. An important precedent was set by the first Treaty of Lom (1975), establishing non-reciprocal trade agreements between European powers and their former colonies. See Manuel Rodriguez-Orellana, The Decolonization of
Puerto Rico in Light of InternationalLegal Precedents: A Case for Post-Independence Advocacy, 5 Bos. Coi L. THIRD
WORLI) L.J. 45 (1984).
91.
92.
See
93.
Martinez, Puerto Rico's Decolonization,supra note 67, at 112.
PUERTO Rico: NACION INDIEPENDIENTE,
supra note 87 at 99-188.
See H.R. 856, supra note 29.
[Vol. 21:31
exemplify democratic aspirations, while adhering to a practice that denigrates the colonized
and demeans the colonizer. Political convenience and fear of being branded "racist" inhibits
free expression in Washington from frankly stating that statehood is unrealistic for a Spanishspeaking Latin American country of the Caribbean, and that the road to sovereign nationhood should be explored in good faith.
THE NEED FOR CONGRESSIONAL ACTION: OPTING FOR THE HIGH ROAD
The United States has the power and the responsibility to initiate a decolonizing
process. The road to a fair and smooth transition from colonial subordination to sovereign
equality must be paved. For this, it is indispensable that a good-faith dialog be initiated by
Congress. Trust and good faith must be conveyed with the same conviction with which decades of unwise policies were promulgated in the past, articulating a set of principles that
guarantee, for the road ahead, a generous, non-punitive separation agreement.
Many of these principles were already examined in Congress during the 1989-1991
proceedings pertaining to bills S. 712 and H.R. 4765, in the Senate and House of Representatives, respectively. These should include, among others, (1) a Treaty of Friendship and Cooperation between the United States and a sovereign Puerto Rico; (2) economic assistance
for an independent Puerto Rico at current levels for a rational economic transition and,
thereafter, as negotiated; (3) continuation of vested rights, such as veterans' benefits, federal
pensions, and Social Security rights, as well as any other vested rights and benefits accruing
to residents of Puerto Rico under the laws of the United States until the normal expiration of
such benefits; (4) tax treatment of foreign corporations under modern tax treaties between
both nations, with adequate provisions for U.S. corporations already located in Puerto Rico
and those that become established after disposition of the territory; (5) free trade agreements with the United States, with due attention to treatment of imports and exports in a
manner that will assist each nation to achieve its trade and economic development objectives; (6) Puerto Rican citizenship which, after the proclamation of independence, could include dual or reciprocal nationality for those who choose to retain American citizenship
under U.S. constitutional law or non-immigrant status, or any other free transit arrangement
94
subsequently negotiated with the flexibility that exists under modern international law.
The Puerto Rican Independence Party has proposed legislation for a Status Assembly wherein each status option would be proportionately represented in an assembly consti-
Regarding the history and developments of modern international law on nationality and citizenship, see Pu94.
ERTO Rico: NACION INDEPENDIE-NTE, supra note 86. Regarding U.S. constitutional law on citizenship, see Jos6 Julfan
Alvarez Gonzhlez, The Empire Strikes Out: Congressional Ruminations on the Citizenship Status of Puerto Ricans, 27
HARVARD J. ON LEGIS. 309 (1990).
20151
tuted for each delegation to develop a proposal for its desired formulation. Representatives
of each delegation, elected by the people of Puerto Rico, would present and discuss the
details of its non-colonial and non-territorial status proposal with U.S. government officials,
requiring a response by a date certain. In the end, only realistic, non-territorial options, approved by U.S. authorities would be submitted to the Puerto Rican electorate. Such proposals-while not written in stone-would avoid the confusion leading voters to pursue paths
leading nowhere.
Puerto Ricans should know that their vote is not a sham and that, as a consequence
of a meaningful choice, implementation of a mutually convenient status resolution would
finally commence. 95 The legislation proposed by the Puerto Rican Independence Party
would begin in Puerto Rico; but nothing prevents the Congress from jump-starting the process through similar or alternative initiatives.
CONCLUSION
Official disenchantment with the commonwealth arrangement, both in Puerto Rico

and in the United States has gradually made its way to center stage since the 1989-1991
proceedings in the U.S. Congress. The curtain has fallen for the Cold War territorial arrangement of 1952 disguised as "commonwealth." It was repudiated after sixty years by the majority of Puerto Rican voters in a 2012 referendum. The territory's financial crisis since 2006
evidencing economic failure had long been brewing. It appears Washington may have begun
to understand the need for a new policy leading to a final resolution. Colonial devotees were
notified in 2013 that there would be no more cuddling of the commonwealth arrangement,
nor tolerance for unrealistic or imaginary "enhancements." Furthermore, the attempt last
century to grapple with the anachronism of Puerto Rico's colonial status all but slammed the
congressional door in the face of the statehood movement, unleashing a process that has
begun to demythologize the golden calf of U.S. rule. Finally, it has become axiomatic that, in
order to achieve a definitive resolution of Puerto Rico's status, real options must be spelled
out by the United States for a Puerto Rico whose real alternatives have been confusingly
encrypted.
Puerto Ricans have a right to affirm their cultural identity and to safeguard their
inalienable right to self-determination. Americans, for their part, should not abdicate the
prerogative to determine their own future as regards Puerto Rico. The self-determination of
the relationship between both countries is at stake, and time is of the essence.
95.
See, Puerto Rico Senate, S.B. 719: Act to Call the Assembly on Status of the People of Puerto Rico, 17th
Legislative Assembly - 2nd Regular Session (Sept. 3, 2013) (official translation).
62
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AND THE U.S. CONGRESS: THE ROAD AHEAD

MANUEL RODRfQUEZ ORELLANA*

Two roads diverged in a wood, and I,

TEXAS HISPANIC JOURNAL OF LAW AND POLICY