[483] 

EDIBERTO ROMÁN* AND ERNESTO SAGÁS† 

Race and Empire:  
The United States Over Puerto Rico 

Abstract ............................................................................................ 483 
Introduction ...................................................................................... 483 
I. The Racial Basis of Empire .................................................. 485 
II. The Racialized Legal Foundations of Empire ....................... 490 
III. The Commonwealth’s Fiction of Self-Rule .......................... 499 
IV. The More Things Change . . . ............................................... 506 
Conclusion (and It Will Stay the Same) ........................................... 517 

ABSTRACT 

Like an imperial chameleon that changes colors to match its 
surroundings, the U.S. government has employed euphemisms, 
rhetorical abstractions, and—at one point in time—openly racist 
language to justify the unequal status of Puerto Rico and Puerto Ricans 
in the Union. Even today, apologists for the U.S. colonial endeavor, 
while avoiding openly racist labels, nonetheless continue to use 
paternalistic justifications that are little more than code for views that 
Puerto Ricans are essentially unfit to be complete U.S. citizens, on an 
equal standing with the rest of the nation. This Article examines the 
racial underpinnings that gave rise to the legal twists and turns of the 
U.S. continued colonial relationship with Puerto Rico. 

INTRODUCTION 

n empire that does not call itself an empire. A colony that is not 
recognized as a colony. And U.S. citizens whose citizenship is 

* Professor of Law, Florida International University.
† Professor of Ethnic Studies, Colorado State University.

A 



484 OREGON LAW REVIEW [Vol. 103, 483 

less than that of other U.S. citizens. These are just some of the 
incongruities, paradoxes, and plain nonsense that reflect the tenor of 
the colonial relationship between the United States and Puerto Rico. 
Puerto Rico, a small archipelago located in the Caribbean, has been a 
U.S. territory since the 1898 Spanish-American War.1 For over a 
century, the White House, the U.S. Congress, and the U.S. Supreme 
Court have decided on behalf of Puerto Ricans, with little say from the 
latter.2 The White House has sent administrators to lord over Puerto 
Rico as if it were a fiefdom, Congress has passed laws that affect the 
daily lives of Puerto Ricans despite the latter’s lack of representation 
in that legislative body, and Supreme Court justices have issued ruling 
after ruling reinforcing the second-class status and colonial subjugation 
of Puerto Ricans.3 Yet, the U.S. government has done everything it can 
to neither be called an empire by the world community nor have its 
most populated territory labeled a colony.4 

Instead, like an imperial chameleon that changes colors to match its 
surroundings, the U.S. government has employed euphemisms, 
rhetorical abstractions, and—at one point in time—openly racist 
language to justify the unequal status of Puerto Rico and Puerto Ricans 
in the Union. Even today, apologists for the U.S. colonial endeavor, 
while avoiding openly racist labels, nonetheless continue to use 
paternalistic justifications that are little more than code for views that 
Puerto Ricans are essentially unfit to be complete U.S. citizens on an 
equal standing with the rest of the nation.5  

This Article examines the racial underpinnings that gave rise to the 
legal twists and turns of the U.S. colonial relationship with Puerto Rico. 

1 See EDIBERTO ROMÁN, THE OTHER AMERICAN COLONIES: AN INTERNATIONAL AND 
CONSTITUTIONAL LAW EXAMINATION OF THE UNITED STATES’ NINETEENTH AND 
TWENTIETH CENTURY ISLAND CONQUESTS 127 (2006).  

2 LESTER D. LANGLEY, THE UNITED STATES AND THE CARIBBEAN IN THE TWENTIETH 
CENTURY 10 (rev. ed. 1989). 

3 Ediberto Román, Empire Forgotten: The United States’s Colonization of Puerto Rico, 
42 VILL. L. REV. 1119, 1120–38 (1997) [hereinafter Empire Forgotten].  

4 See LANGLEY, supra note 2, at 12. 
5 See JOSÉ TRÍAS MONGE, PUERTO RICO: THE TRIALS OF THE OLDEST COLONY IN THE 

WORLD 44–50 (1997); EFRÉN RIVERA RAMOS, THE LEGAL CONSTRUCTION OF IDENTITY: 
THE JUDICIAL AND SOCIAL LEGACY OF AMERICAN COLONIALISM IN PUERTO RICO 73–142 
(2001); KAL RAUSTIALA, DOES THE CONSTITUTION FOLLOW THE FLAG?: THE EVOLUTION 
OF TERRITORIALITY IN AMERICAN LAW 72–91 (2009); BARTHOLOMEW H. SPARROW, THE 
INSULAR CASES AND THE EMERGENCE OF AMERICAN EMPIRE 257 (2006); Christina Duffy 
Burnett, A Note on the Insular Cases, in FOREIGN IN A DOMESTIC SENSE: PUERTO RICO, 
AMERICAN EXPANSION, AND THE CONSTITUTION 389, 389–90 (Christina Duffy Burnett & 
Burke Marshall eds., 2001); JUAN R. TORRUELLA, THE SUPREME COURT AND PUERTO 
RICO: THE DOCTRINE OF SEPARATE AND UNEQUAL 40–84 (1985). 



2025] Race and Empire: The United States Over Puerto Rico 485

First, we document how White supremacy is a foundational belief in 
the United States from its very own founding as a slave-owning nation 
that stole land from Indigenous nations along its expansionist path. 
Second, we examine the U.S. military takeover of Puerto Rico and the 
construction of the legal basis of the colonial relationship (i.e., the 
Insular Cases). Third, we revisit the creation of Commonwealth status, 
a legal fiction designed to appease Puerto Ricans and the international 
community. Fourth, we look at the present status of Puerto Rico and its 
people to highlight how little has changed regarding the territory’s 
colonial status. Finally, we explore how, to this day, scholars and 
judges continue to view Puerto Ricans, despite being U.S. citizens, as 
something less than full Americans. In terms of modern-day 
justifications, openly racist labels are avoided. Still, the ever-present, 
demeaning tenor of words like “cultural fit” is used to justify 
subordinate treatment, instead of old terms like “savages unfit for 
Anglo-Saxon traditions” used at the time of Puerto Rico’s conquest by 
U.S. troops.6  

From the White supremacist arguments of the early twentieth 
century, to the paternalistic attitudes of the mid-twentieth century, to 
today’s condescending tone stemming from various U.S. 
administrations, racist attitudes have colored (pun intended) and still 
define the colonial tenor and legacy of this highly unequal relationship. 
Puerto Ricans remain unwanted colonial subjects—despite U.S. 
assurances to the contrary. 

I 
THE RACIAL BASIS OF EMPIRE 

While often mentioned as clear and convincing evidence of the racist 
bedrock of the American nation, the Three-Fifths Compromise written 
into the U.S. Constitution in 1787 is but one of many such instances 
that shaped the racially conscious republic.7 Dating back to the arrival 
of English colonists to North America in the early seventeenth century, 
European settlements were made possible by dispossessing Indigenous 

6 See Stanley K. Laughlin, Jr., Cultural Preservation in Pacific Islands: Still a Good 
Idea—and Constitutional, 27 U. HAW. L. REV. 331, 374 (2005) (“The genius of the [doctrine 
of the Insular Cases] is that it allows the insular areas to be full-fledged parts of the United 
States but, at the same time, recognizes that their cultures are substantially different from 
those of the mainland United States and allows some latitude in constitutional interpretation 
for the purpose of accommodating those cultures.”).  

7 U.S. CONST. art. I, § 2, cl. 3, abrogated by U.S. CONST. amend. XIV. 



486 OREGON LAW REVIEW [Vol. 103, 483 

peoples of their lands through sale, treaty, or often, war.8 This trend 
would be exacerbated by continental conflicts like the French and 
Indian War (1754–1763) and the American Revolutionary War (1775–
1783), and their aftermath (e.g., the 1783 Treaty of Paris).9 Native 
Americans lost their homelands as the new nation expanded (mostly) 
westward.10 The territorial expansion of the United States went hand-
in-hand with the expansion of plantation agriculture and enslaved 
labor. The first enslaved Africans arrived in the Virginia colony in 
1619, and the cruel institution of slavery soon formed the basis for the 
creation of wealthy colonies in English North America.11 In both cases, 
White supremacy was invoked to justify the murder and displacement 
of Native Americans as well as the kidnapping and enslavement of 
African Americans.12 European settlers invoked the doctrine of 
discovery to justify their takeover of Indigenous lands, while tropes 
regarding the inferiority and backwardness of Native Americans 
assuaged White settlers that these lands were now being better 
managed.13 Likewise, the Atlantic slave trade provided the cheap labor 
that White settlers needed to exploit their ill-gotten lands, based on 
racist arguments that the enslavement of Africans was ethical, natural, 
and even beneficial for the latter. In short, the biggest land grab in 
North America was made profitable by the enslaved labor of thousands 
of Africans.14 

As the United States greatly expanded its territory via the Louisiana 
Purchase (1803), the acquisition of Florida (1819), the annexation of 
Texas (1845), the war with Mexico (1846–1848), and the Oregon 
Treaty (1846), the displacement (and extermination) of Native 
Americans continued unabated as White settlers robbed them of their 
lands with the support of the U.S. government and its military.15 
Slavery also expanded west until the Civil War (1861–1865) brought 

8 Logan Tesmer, Learning About Indian Law with Professor Mathew Fletcher, CBS 
NEWS (Nov. 11, 2022, 12:00 PM), https://www.cbsnews.com/detroit/news/learning-about 
-indian-law-with-professor-matthew-fletcher/ [https://perma.cc/U3XY-B2FX].

9 See RONALD TAKAKI, A DIFFERENT MIRROR: A HISTORY OF MULTICULTURAL
AMERICA 24–76 (rev ed. 2008).

10 See Tesmer, supra note 8.  
11 See TAKAKI, supra note 9, at 51. 
12 Id. at 60–61. 
13 Id. at 32–34. 
14 Id. at 54–68. 
15 See RICHARD W. ETULAIN, BEYOND THE MISSOURI: THE STORY OF THE AMERICAN 

WEST 63–145 (2006). 



2025] Race and Empire: The United States Over Puerto Rico 487

about its demise.16 In addition, the Mexican citizens of the territory 
acquired via the Treaty of Guadalupe Hidalgo (1848) suffered at the 
hands of White settlers who cheated them out of their lands thanks to 
U.S.-dominated courts, and the U.S. federal government that claimed
ownership of large tracts of land known as the “commons.”17

The relative ease by which the United States quickly expanded its 
territory to become a continental nation led to the articulation of racial 
theories that explained, supported, and justified settler colonialism 
along racial and religious lines.18 For example, the ideology of 
“Manifest Destiny” proclaimed that the United States was a nation 
chosen by God as the new homeland of “Anglo-Saxons.”19 It was 
obvious (i.e., manifest) that God’s intended plan was for White settlers 
to make the land flourish and exploit its vast resources. Native 
Americans, Mexicans, and other peoples of color were to bow to the 
supremacy of the industrious Anglo-Saxon race.20 As relics of the past, 
the former had to accept their new fate as laborers for the latter, or 
disappear, swept away by progress.21 Later in the nineteenth century, 
Social Darwinism22 convinced White audiences that their supremacy 
was also driven by evolution, as the superior species in the pecking 
order of humanity, destined to rule over inferior peoples of color—as 
nature intended.23 Finally, toward the end of the nineteenth century, 
Rudyard Kipling’s poem “The White Man’s Burden” fed into the 

16 Id. at 214–15. 
17 LAURA E. GÓMEZ, MANIFEST DESTINIES: THE MAKING OF THE MEXICAN AMERICAN 

RACE 128–29 (2d ed. 2018). 
18 See ROMÁN, supra note 1.  
19 ANDERS STEPHANSON, MANIFEST DESTINY: AMERICAN EXPANSION AND THE 

EMPIRE OF RIGHT 38–40 (Eric Foner, ed., 1st ed. 1996). 
20 Id. at 89. 
21 John Gast, American Progress, 1872, oil on canvas, 29.2 × 40 cm, Autry Museum of 

the American West, California, https://collections.theautry.org/mwebcgi/mweb.exe?request 
=record;id=M545330;type=101 [https://perma.cc/7LU9-35TZ] (depicting the ideology of 
Manifest Destiny by showing the westward expansion of White settlers (e.g., farmers, 
prospectors, and others), as they bring their technology from the East Coast, while wild 
animals and Native Americans run away).  

22 See ROBERT BANNISTER, SOCIAL DARWINISM: SCIENCE AND MYTH IN ANGLO-
AMERICAN SOCIAL THOUGHT 114–36 (Allen F. Davis ed., 1989). 

23 Even light-skinned, but “uncivilized,” peoples—like the Irish—could not escape the 
perverted logic of Social Darwinism. The English depicted the Irish as a lower order of the 
human species, and American employers used Irish immigrants as cheap, disposable labor. 
TAKAKI, supra note 9, at 140–41. See also Illustration of Scientific Racism, in GEORGE 
BORNSTEIN, MATERIAL MODERNISM: THE POLITICS OF THE PAGE 146 fig.3 (2001) (citing 
H. STRICKLAND CONSTABLE, IRELAND FROM ONE OR TWO NEGLECTED POINTS OF VIEW
(1899)).



488 OREGON LAW REVIEW [Vol. 103, 483 

imperial ambitions of the United States by encouraging it to embark on 
a civilizing mission.24 According to Kipling, White men (in the case of 
the United States) had a moral obligation to rule over its newly acquired 
peoples of color (e.g., Filipinos, Cubans, and Puerto Ricans) who were 
unfit to rule themselves.25 Democratic institutions were exclusively 
within the purview of White Americans, and racially inferior peoples 
were incapable of living according to democratic rules, so a 
paternalistic, colonial order was in the best interest of the latter.26 An 
arguably original form of colonial Jim Crow adapted to local 
conditions. 

As the United States expanded throughout the continent, its leaders 
also dreamed of overseas conquests. In 1823, amid independence 
struggles in Latin America, the Monroe Doctrine warned European 
empires against trying to recover their former colonies or establishing 
new ones. It was a bold proclamation by a nation that barely had a navy 
that could match the Europeans’ might, but it reflected the self-
perception of a nation on the rise.27 In 1854, the Ostend Manifesto 
called for the acquisition of Cuba (by force if necessary) to expand the 
number of U.S. slave states.28 In 1869, the Grant Administration 
proposed annexing the Dominican Republic to build a U.S. naval base 
in the Bay of Samaná and also potentially to use the new state as a 
homeland for African Americans who wanted to leave the poverty and 
racism of the Southern United States.29 The treaty proved to be 
contentious, and the U.S. Senate failed to ratify it.30 Finally, in 1889, 
the Harrison Administration sent Frederick Douglass as the United 
States Minister to Haiti to secure a lease on Môle-Saint-Nicolas, a well-
sheltered bay where the U.S. Navy wanted to build a coaling station. 
The negotiations failed when the U.S. Navy—in a show of force—sent 
battleships to Port-au-Prince and Douglass resigned under threats.31 
These failed imperial overtures ultimately led the United States to get 

24 TOMMY J. CURRY, ANOTHER WHITE MAN’S BURDEN: JOSIAH ROYCE’S QUEST FOR 
A PHILOSOPHY OF WHITE RACIAL EMPIRE 75 (2018). 

25 Id. 
26 Id. at 30. 
27 JAY SEXTON, THE MONROE DOCTRINE: EMPIRE AND NATION IN NINETEENTH-

CENTURY AMERICA 85–86 (2011). 
28 Id. at 96. 
29 WILLIAM JAVIER NELSON, ALMOST A TERRITORY: AMERICA’S ATTEMPT TO ANNEX 

THE DOMINICAN REPUBLIC 59–86 (1990). 
30 Id. at 64.  
31 See CLAIRE BOURHIS-MARIOTTI, WANTED! A NATION! BLACK AMERICANS AND 

HAITI, 1804-1893, at 126–50 (C. Jon Delogu trans. 2023). 



2025] Race and Empire: The United States Over Puerto Rico 489

involved in the bloody war of independence between Cuban rebels and 
the Spanish, which took place just ninety miles from U.S. shores. 

Armed with notions of racial supremacy and a quiver of ideological 
justifications, the United States finally fully embarked on overseas 
imperial conquest in 1898.32 Drawn into the Cuban War of 
Independence by Spain’s waning power, the United States declared war 
on Spain shortly after the mysterious explosion of the USS Maine in 
Havana Harbor.33 As part of a strategy to keep Spanish forces occupied 
on several fronts, U.S. troops landed in Puerto Rico on July 25, 1898.34 
As a result, Puerto Rico ended up being part of the spoils of war, ceded 
by Spain to the United States under the terms of the Treaty of Paris.35 
The new U.S. empire now included possessions in the Caribbean and 
the Pacific, territories unfamiliar to U.S. policymakers. In the brown 
faces of the islanders, they saw a people incapable of ruling themselves
and unfit for democracy,36 just like the African Americans, American 
Indians, and Mexicans of the U.S. mainland.37 It was time for Uncle 
Sam to take control over its newly conquered empire. 

32 See ROMÁN, supra note 1, at 23–26. 
33 GEORGE BLACK, THE GOOD NEIGHBOR: HOW THE UNITED STATES WROTE THE 

HISTORY OF CENTRAL AMERICA AND THE CARIBBEAN 1–3 (1988). Investigations carried 
out in the years that followed the explosion point to two possible scenarios: either an 
accidental explosion sparked by spontaneous combustion in the ship’s coal bunkers (which 
detonated the ammunition magazines) or a deliberate attack with an explosive device, like a 
mine. The U.S. Navy’s 1898 investigation attributed the explosion to a mine. This generated 
intense support among the American public for war against Spain—even though there was 
no evidence or mention of Spanish culpability in the Navy’s report. See U.S. NAVY, REPORT 
OF THE NAVAL COURT OF INQUIRY UPON THE DESTRUCTION OF THE UNITED STATES 
BATTLESHIP MAINE IN HAVANA HARBOR, FEBRUARY 15, 1898 (1898), https://www.history 
.navy.mil/research/publications/documentary-histories/united-states-navy-s/destruction-of 
-the-m/report-of-the-naval-0.html [https://perma.cc/DN82-8QUJ].

34 MONGE, supra note 5, at 26.
35 Id. 
36 See BLACK, supra note 33, at 16 (citing WILLIAM S. BRYAN ET AL., OUR ISLANDS 

AND THEIR PEOPLE (1899), a glossy, two-volume set with dozens of photographs and 
comments on the new overseas possessions of the United States, often focusing on their 
“exotic” inhabitants).  

37 BLACK, supra note 33, at 13–14. 



490 OREGON LAW REVIEW [Vol. 103, 483 

II 
THE RACIALIZED LEGAL FOUNDATIONS OF EMPIRE 

As this racist depiction first published at the time of conquest 
highlights, the United States entered its overseas imperial venture as an 
overlord with the “White Man’s Burden” to care for the inferior people 
it just conquered.38 In fact, after its defeat in the Spanish-American 
War, Spain officially ceded Puerto Rico and its people to the United 
States in 1898.39 Under the Territorial Clause of the U.S. Constitution 
and Article IX of the Treaty of Paris of 1898, Congress was empowered 

38 Id. at 14. Photo from The New York Public Library. 
39 See Treaty of Peace Between the United States and Spain, Spain-U.S., art. II, Dec. 10, 

1898, T.S. No. 343 (“Spain cedes to the United States the island of Porto [sic] Rico and 
other islands now under Spanish sovereignty in the West Indies[.]”) [hereinafter Treaty of 
Paris]; cf. JOSÉ A. CABRANES, CITIZENSHIP AND THE AMERICAN EMPIRE 1 (1979) (focusing 
on political developments in United States leading to Congress granting Puerto Ricans 
citizenship); T. Alexander Aleinikoff, Puerto Rico and the Constitution: Conundrums and 
Prospects, 11 CONST. COMMENT. 15, 33–40 (1994) (discussing constitutional membership 
and political sovereignty for Puerto Rico); Philip Joseph Deutch, Note, The Uniformity 
Clause and Puerto Rican Statehood, 43 STAN. L. REV. 685, 690–95 (1991) (providing 
background on Puerto Rican statehood in light of federal income tax concerns); Dorian A. 
Shaw, Note, The Status of Puerto Rico Revisited: Does the Current U.S.-Puerto Rico 
Relationship Uphold International Law?, 17 FORDHAM INT’L L.J. 1006, 1011 (1994) 
(arguing establishment of commonwealth government failed to fulfill the United Nations’ 
requirement of freely associated territory). 



2025] Race and Empire: The United States Over Puerto Rico 491

with the ability to oversee “[t]he civil rights and political status” of the 
territory and its people.40 This treaty endorsed the imperialistic rights 
of the United States, because it was one of the first times in American 
history that “in a treaty acquiring territory for the United States, there 
was no promise of [American] citizenship,” and further, “there was no 
promise, actual or implied, of statehood.”41  

Indeed, armed with the imperial mandate from the Treaty of Paris of 
1898, the United States proceeded to assume control over virtually 
every facet of Puerto Rico and its people’s fate. The United States 
decided Puerto Ricans’ U.S. citizenship status,42 the new territory’s 
legal status,43 and even the territory’s name, which initially was 
incorrectly labeled as “Porto Rico.”44 For 125 years, the United States 
has dictated both the rights of the Puerto Rican people, as well as 
virtually every aspect of their government.45 These exhibitions of 

40 Treaty of Paris, supra note 39, at art. IX; see also U.S. CONST. art. IV, § 3, cl. 2 (“The 
Congress shall have Power to dispose of and make all needful Rules and Regulations 
respecting the Territory or other Property belonging to the United States; and nothing in this 
Constitution shall be so construed as to Prejudice any Claims of the United States, or of any 
particular State.”). Under the Treaty of Paris of 1898, sovereignty over the Philippines, 
Guam, and Puerto Rico passed from Spain to the United States. See Treaty of Paris, supra 
note 39, at art. II (noting Spain’s relinquishment of sovereignty over ceded lands). The 
citizens of Puerto Rico were not, however, granted U.S. citizenship. See CABRANES, supra 
note 39, at 4 (noting the Treaty of Paris did not promise Puerto Ricans U.S. citizenship). 

41 JULIUS W. PRATT, AMERICA’S COLONIAL EXPERIMENT: HOW THE UNITED STATES 
GAINED, GOVERNED, AND IN PART GAVE AWAY A COLONIAL EMPIRE 68 (1950); cf. Treaty 
of Peace, Friendship, Limits, and Settlement, Mex.-U.S., Feb. 2, 1848, T.S. No. 207 
(determining the end of war between the United States and Mexico). Pratt argues that the 
territorial growth of the United States in the century following independence was marked 
by two related characteristics. See PRATT, supra, at 41 (identifying the first characteristic as 
the step-by-step acquisition of contiguous mainland territory and the second as making each 
acquired territory an integral part of the country). Imperialism did not become a part of the 
American experience until 1898, after the Spanish-American War, when American 
sovereignty was extended to lands settled by populations that were vastly different from the 
American population. See id. at 2 (stating that after 1898, assimilation of newly acquired 
territory became virtually impossible). 

42 PRATT, supra note 41, at 68.  
43 Id.  
44 See Act of May 17, 1932, ch. 190, 47 Stat. 158 (codified at 48 U.S.C. § 731a) (stating 

that after the Act takes effect, “Porto Rico” will be designated “Puerto Rico”). 
45 See Treaty of Paris, supra note 39, at art. IX–XV (addressing property rights, freedom 

of religion and vesting governing power in Congress). The United States’ power over the 
Puerto Rican people officially derived from Article IX of the Treaty of Paris of 1898, which 
specifically provided that “[t]he civil rights and political status of the native inhabitants of 
the territories hereby ceded to the United States shall be determined by the Congress.” Id. 
art. IX. 



492 OREGON LAW REVIEW [Vol. 103, 483 

power have been manifested through both congressional actions and 
Supreme Court decisions.46 

Almost immediately after its conquest,47 the United States 
established a military government overseen by General Nelson A. 
Miles, the commander of Puerto Rico’s invasion.48 Despite lasting only 
two years,49 the United States military government was not without its 
glorious promises, such that Puerto Rico would have a direct and 
lasting link to the U.S. political system.50 Following the invasion, 
General Miles proclaimed that the U.S. military forces came “bearing 
the banner of freedom.”51 General Miles declared that the U.S. forces 
did “not come to make war upon the people of a country that for 

46 See ROMÁN, supra note 1, at 15–59.  
47 See Act of July 3, 1950, ch. 446, § 2, 64 Stat. 319 (codified at 48 U.S.C. § 731c) 

(authorizing Puerto Rican people to organize a constitutional convention and draft a Puerto 
Rican constitution if the Act is adopted by an island-wide referendum); Act of March 2, 
1917, ch. 145, §§ 12–54, 39 Stat. 955–68 (surviving conditions codified as amended at 48 
U.S.C. §§ 742, 864, 868, 872) (establishing executive, legislative, and judicial departments 
of the civil government of Puerto Rico); Foraker Act, ch. 191, §§ 2–38, 31 Stat. 77–86 
(1900) (surviving provisions codified as amended at 48 U.S.C. §§ 733, 736, 738–40, 744) 
(establishing executive, legislative, and judicial bodies for Puerto Rico); Downes v. Bidwell, 
182 U.S. 244, 287 (1901) (“We are therefore of opinion that the Island of Porto [sic] Rico 
is a territory appurtenant and belonging to the United States, but not a part of the United 
States within the revenue clauses of the Constitution[.]”); Armstrong v. United States, 182 
U.S. 243, 244 (1901) (concluding the duties imposed after signing of Treaty of Paris were 
not properly executed); Dooley v. United States, 182 U.S. 222, 235 (1901) (noting that 
Puerto Rico was no longer subject to U.S. tariffs after the signing of the Treaty of Paris); 
Goetze v. United States, 182 U.S. 221, 222 (1901) (finding Puerto Rico not a foreign country 
under tariff laws); De Lima v. Bidwell, 182 U.S. 1, 200 (1901) (holding Puerto Rico not a 
foreign country within the meaning of tariff laws but rather an island territory of the United 
States). 

48 See Carlos E. Díaz Olivo, The Fiscal Relationship Between Puerto Rico and the 
United States: A Historical Analysis, 8 REV. DEL COLEGIO DE ABOGADOS DE P.R. 1, 3 
(1995) (noting that General Miles ordered sustaining fiscal dispositions existing under 
Spanish regime). International law at the time of the Spanish-American War recognized 
the right of the belligerent to occupy and govern the enemy territory. See Manuel Del 
Valle, Puerto Rico Before the United States Supreme Court, 19 REV. JURIDÍCA U. 
INTERAMERICANA P.R. 13, 21 (1984) (stating right to occupy and govern during military 
possession). With this in mind, in 1898, the President of the United States issued General 
Order No. 101, which stated that, although the United States’ military power was absolute, 
local laws were to remain in force. See id. at 21–22 (noting order stated private property 
should not be confiscated). General Order No. 101 also gave General Miles complete 
authority over the island, second only to the President himself. See id. at 22 (noting that 
General Miles rearticulated General Order No. 101 to the Puerto Rican people). 

49 See CABRANES, supra note 39, at 19.  
50 Id.  
51 OFFICE OF THE COMMONWEALTH OF PUERTO RICO, DOCUMENTS ON THE 

CONSTITUTIONAL HISTORY OF PUERTO RICO 55 (1964) (proclaiming United States 
occupied Puerto Rico). 



2025] Race and Empire: The United States Over Puerto Rico 493

centuries has been oppressed,”52 but to promote prosperity, bestow “the 
immunities and blessings of the liberal institutions” of the U.S. 
government and bring the Puerto Rican people protection.53 At the very 
least, such statements suggested that the United States was prepared to 
accept Puerto Rico and its people as part of the United States in some 
form.54 Unfortunately, after more than a hundred years of this lopsided 
relationship, the reality is that the United States continues to subjugate 
the Puerto Rican people, and it seems like it may never be fully 
prepared to incorporate Puerto Rico and its people.55 

With the United States assuming a new role as an overseas 
expansionist nation, the debate over what to do with and how to treat 
these newly acquired lands and their people became central not only to 
debates during the passage of a host of federal laws but also to debates 
in Congress, in the Supreme Court, and even in scholarly circles.56 In 
each instance, demeaning justifications for empire were used, and in 
most instances, openly racist sentiments were posited as rational 
justifications for the subordination of Puerto Ricans.57  

Shortly after the U.S. military conquest,58 Congress passed the 
Foraker Act of 1900, and began a process that would ensure that Puerto 
Rico would remain a colony.59 The Foraker Act replaced the military 

52 Id. 
53 Id.; CABRANES, supra note 39, at 19 (arguing that Miles’ proclamation suggested that 

Puerto Rico would have direct and lasting link to U.S. political system). 
54 See Empire Forgotten, supra note 3, at 1142; see also CABRANES, supra note 39, at 

20–21 (noting that Treaty of Paris confirmed Puerto Rico would become part of U.S. empire 
but made no guarantees as to statehood or citizenship). 

55 See Empire Forgotten, supra note 3, at 1142.  
56 See infra notes 62–88 and accompanying text.  
57 Later in this Article, we observe that today’s leaders avoid openly racist terminology 

most of the time. However, the fact remains that people still use demeaning and 
condescending words today to justify colonialism. Such tactics are equally racist and, in 
many respects, more damnable in that, through obfuscation, these leading lights continue to 
support the plague that is subjugation through empire.  

58 Although just two years elapsed between the U.S. military takeover of Puerto Rico in 
1898 and the passing of the Foraker Act in 1900, the economic repercussions of 
congressional dithering prolonged the suffering of Puerto Ricans needlessly. During those 
two years, the U.S. territory Puerto Rico was considered a foreign port and its products paid 
stiff tariffs when entering the United States, leading to the crash of the coffee exporting 
sector. To make things worse, a major hurricane hit the island in 1899. See JAMES L. DIETZ, 
ECONOMIC HISTORY OF PUERTO RICO: INSTITUTIONAL CHANGE AND CAPITALIST 
DEVELOPMENT 98–99 (1986). 

59 Foraker Act, ch. 191, 31 Stat. 77 (1900) (codified as amended 48 U.S.C. §§ 733, 736, 
738–40, 744, 866). The Foraker Act created a mixed system of government in which the 
“elected house of delegates was checked by an appointed upper house.” PRATT, supra note 



494 OREGON LAW REVIEW [Vol. 103, 483 

government with a civilian colonial government.60 It also established 
many other aspects of Puerto Rico’s new government.61 During this 
period, U.S. congressional leaders played a significant role in the 
treatment of the newly acquired colonial subjects, i.e., the appropriate 
legal status of Filipinos and Puerto Ricans simultaneously, as they set 
a tone for racist depictions of the people of these lands.62 These 
congressional bigots were shameless in their ignorant racist attacks. 
One congressional report portrayed Filipinos as “physical weaklings of 
low stature, with black skin, closely curling hair, flat noses, thick 
lips, and large, clumsy feet.”63 Representative Sereno Payne, evidently 
attempting to put Puerto Ricans in a better light, trumpeted census 
reports taken of the people of Puerto Rico showing that “whites . . . 
generally full-blooded white people, descendants of the Spaniards,” 
outnumbered by nearly two-to-one the combined total of “negroes” 
and “mulattoes.”64 But Representative Thomas Spight, being at least as 
racist, sought to portray Filipinos as “non-white” and, therefore, 
uncivilized and un-American.65 Spight went on to compare Filipinos to 
Puerto Ricans, arguing “[h]ow different the case of the Philippine 

41, at 185, 187 (noting Foraker Act also declared all inhabitants Puerto Rican citizens under 
the United States’ protection). 

60 See Foraker Act, ch. 191, §§ 17–29, 31 Stat. at 81–83 (designing the government to 
include a governor the President of the United States appointed; an Executive Council 
comprised of a Secretary, Attorney-General, Treasurer, Auditor, Commissioner of the 
Interior; and a House of Delegates comprised of two houses of which only one was made 
up of elected officials). The judicial branch was comprised of the local courts and tribunals 
the military government previously established, but the President was to appoint the justices 
of the Supreme Court. See id. §§ 33, 31 Stat. at 84 (describing jurisdiction of the court as 
that “defined and prescribed in and by . . . laws and ordinances”). Puerto Rico was also 
designated a U.S. judicial district. See id. §§ 33–34, 31 Stat. at 84–85 (describing the court’s 
jurisdiction as both ordinary jurisdiction of U.S. district court and “of all cases cognizant in 
the circuit courts of the United States”).  

61 See id. §§ 2–16, 31 Stat. at 77–81 (addressing such governmental decisions as the 
location of the capital, tariff duty system on trade to and from Puerto Rico, official currency, 
and the Puerto Rican government’s authority to control Puerto Rican property that United 
States owned as result of Spanish-American War). Congress was so magnanimous that it 
even granted “Porto [sic] Rican” citizenship to the people of Puerto Rico. See id. § 7, 31 
Stat. at 79 (declaring Puerto Rican citizens as those individuals and their children who were 
Spanish subjects residing on the island as of April 11, 1899); see also H.R. REP. NO. 104-
713, pt. 1 (1996) (setting forth Congressional findings and procedures for Puerto Rican 
government). 

62 See Ediberto Román, The Alien-Citizen Paradox and Other Consequences of U.S. 
Colonialism, 26 FLA. ST. U. L. REV. 1, 5–10 (1998).  

63 33 CONG. REC. 3613 (1900) (quoting from a report of the Philippine Commission to 
the President). 

64 Id. at 1941 (remarks of Rep. Payne). 
65 Id. at 2105 (remarks of Rep. Spight). 



2025] Race and Empire: The United States Over Puerto Rico 495

Islands, 10,000 miles away. . . . The inhabitants are of wholly different 
races of people from ours—Asiatics, Malays, negroes, and mixed 
blood. They have nothing in common with us and centuries cannot 
assimilate them.”66 Representative John Dalzell argued against 
accepting Filipinos into the American body politic, observing that he 
was unwilling “to see the wage-earner of the United States, the farmer 
of the United States, put upon a level and brought into competition with 
the cheap half-slave labor, savage labor, of the Philippine 
Archipelago.”67 House representatives greeted Dalzell’s comments 
with loud applause.68 Not to be outdone, the bigot Representative 
George Gilbert warned against “[opening] wide the door by which 
these negroes and Asiatics can pour like the locusts of Egypt into this 
country.”69 Senator William Bate (a former Confederate slaveowner) 
added to the racist rhetoric of the moment, by observing: 

Let us not take the Philippines in our embrace to keep them simply 
because we are able to do so. I fear it would prove a serpent in our 
bosom. Let us beware of those mongrels of the East, with breath of 
pestilence and touch of leprosy. Do not let them become a part of us 
with their idolatry, polygamous creeds, and harem habits.70  

Although the above quotes highlight the racist disdain for Filipinos 
and the somewhat gentler depictions of Puerto Ricans as resembling 
Spaniards, the so-called European passing of sorts did not help the 
Puerto Rican people from being accepted as full members of the Union 
by scholars, Congress, or the U.S. Supreme Court. Leading scholars71 
greatly contributed to the imperial xenophobia.72 In a series of articles 
published in the Harvard Law Review, bigotry and xenophobia were 
the basis to subordinate and subjugate U.S. colonial subjects. One 
writer observed: 

66 Id.  
67 Id. at 1959 (remarks of Rep. Dalzell). 
68 Id.  
69 Id. at 2172 (remarks of Rep. Gilbert). 
70 Id. at 3616 (remarks of Sen. Bate) (emphasis added).  
71 We argue (though in far more palatable tones) that, even today, the Harvard Law 

Review is tepid in its condemnation of colonialism and has recently published pieces from 
apologists supporting empire. While not openly racist as in 1900, in the twenty-first century, 
these apologists refrain from using words like mongrels and savages, but instead, they use 
terms such as territorial federalism or cultural differences to justify and, in essence, support 
empire. Both the modern-day apologists as well as the Harvard Law Review should be 
condemned for their support of colonialism.  

72 Simeon E. Baldwin, The Constitutional Questions Incident to the Acquisition and 
Government by the United States of Island Territory, 12 HARV. L. REV. 393, 415 (1899). 



496 OREGON LAW REVIEW [Vol. 103, 483 

Our Constitution was made by a civilized and educated people. It 
provides guaranties of personal security which seem ill adapted to the 
conditions of society that prevail in many parts of our new 
possessions. To give the half-civilized Moros of the Philippines, or 
the ignorant and lawless brigands that infest Puerto Rico, or even the 
ordinary Filipino of Manila, the benefit of such immunities . . . would 
. . . be a serious obstacle to the maintenance there of an efficient 
government.73  

Another scholar in that series argued that “[w]hat was appropriate in 
the case of some territories might not be in other cases. A cannibal 
island and the Northwest territory would require different treatment 
. . . .”74 

The United States Supreme Court, for its part, would soon thereafter 
venture into the colonial discourse in the “Insular Cases,”75 further 
defining the parameters of the United States-Puerto Rico colonial 
relationship.76 At their core, these decisions were based on bigotry 
and bias. The first insular case, De Lima v. Bidwell,77 held that the 
Treaty of Paris established Puerto Rico as an unincorporated, but not 
organized, U.S. territory that should not be treated as a state.78 The De 
Lima Court upheld Congress’ unfettered power over Puerto Rico and 
its people, stating that the national legislature:

[M]ay organize a local territorial government; it may admit it [Puerto
Rico] as a State . . . [and] it may sell its public lands [acquired by
treaty] to individual citizens or may donate them as homesteads to
actual settlers . . . when once acquired by treaty [because the

73 Id.  
74 James Bradley Thayer, Our New Possessions, 12 HARV. L. REV. 464, 481 (1899). 
75 See Downes v. Bidwell, 182 U.S. 244, 287 (1900) (“We are therefore of the opinion 

that the island of Porto [sic] Rico is a territory appurtenant and belonging to the United 
States, but not part of the United States within the revenue clauses of the Constitution.”); 
Armstrong v. United States, 182 U.S. 243, 244 (1901) (concluding duties imposed after 
signing of Treaty of Paris not properly executed); Dooley v. United States, 182 U.S. 222, 
235 (1901) (noting Puerto Rico no longer subject to U.S. tariffs after signing of Treaty of 
Paris); Goetze v. United States, 182 U.S. 221, 222 (1901) (finding Puerto Rico was not a 
foreign country under tariff laws); De Lima v. Bidwell, 182 U.S. 1, 13 (1901) (holding 
Puerto Rico was not a foreign country within meaning of tariff laws, but rather island 
territory of United States). The term “Insular Cases” is a name generally given to a series of 
nine decisions rendered by the Supreme Court in 1901. See Efrén Rivera Ramos, The Legal 
Construction of American Colonialism: The Insular Cases (1901-1922), 65 REVISTA 
JURÍDICA U.P.R. 225, 228 (1996).  

76 See Román, supra note 3, at 1120.  
77 De Lima, 182 U.S. at 14.  
78 See id. at 196–97 (addressing the United States’s virtually absolute power over 

acquired territories). 



2025] Race and Empire: The United States Over Puerto Rico 497

territory] belongs to the United States and is subject to the disposition 
of Congress.79 

The next consequential insular decision, Downes v. Bidwell,80 
further confirmed the mother country’s absolute power over its 
subjects: “The power of Congress over the territories of the United 
States is general and plenary . . . . It would be absurd to hold that the 
United States has power to acquire territory, and no power to govern it 
when acquired.”81 Justice Brown, writing for the Court, expressed a 
nativistic fear, still apparent today, that if the United States could not 
control the future of the inhabitants of newly acquired territories, or at 
least “their children thereafter born, whether savages or civilized,” they 
might automatically become American citizens.82 The Court went on 
to note that “[a] false step at this time might be fatal to the development 
of what Chief Justice Marshall called the American Empire.”83  

The Downes Court established a new legal paradigm over the 
colonies: the “territorial incorporation” doctrine.84 Under this doctrine, 

79 Id. at 197 (addressing Congress’ rights over acquired territories); see Jon M. Van 
Dyke, The Evolving Legal Relationships Between the United States and Its Affiliated U.S.-
Flag Islands, 14 U. HAW. L. REV. 445, 457 (1992) (noting that Congress’ power over its 
territories is plenary) (citing Downes, 182 U.S. at 268). Congress’ relationship with its 
territories’ governments is much like that of the states with their counties. See id. at 454 
(noting that Congress has the power to veto territorial government decisions and directly 
legislate for its territories despite their governments) (citing Nat’l Bank v. County of 
Yankton, 101 U.S. 129, 133 (1880)). 

80 Downes, 182 U.S. at 268. 
81 Id. (quoting Late Corp. of the Church of Jesus Christ of Latter-Day Saints v. United 

States, 136 U.S. 1, 42 (1890)). In Downes, the constitutionality of the Foraker Act’s 
imposition of duties on imports from Puerto Rico was challenged under the Uniformity 
Clause. See id. at 247 (noting the broader question of whether the Constitution’s revenue 
clauses extend their own force to newly acquired territories). The Uniformity Clause 
declares that “all Duties, Imposts and Excises shall be uniform throughout the United 
States.” U.S. CONST. art. I, § 8. The Court also noted that if Puerto Rico were part of the 
United States, the Foraker Act would be unconstitutional under Article I, Section 9. See 182 
U.S. at 251 (stating Article 1, Section 9 of the U.S. Constitution provides all vessels bound 
from states cannot be required to pay duties to another). In resolving the question, the Court 
held that, under the Treaty of Paris, Puerto Rico was a territory “appurtenant and belonging 
to the United States” and, therefore, should not be treated as a state of the United States. Id. 
at 287 (holding provision of Foraker Act imposing duties on Puerto Rican exports 
constitutional). 

82 Downes, 182 U.S. at 279 (noting U.S. power to declare terms upon which the United 
States will receive inhabitants of acquired territories). 

83 Id. at 286. 
84 See Shaw, supra note 39, at 1014–15 (clarifying the difference between incorporated 

and unincorporated territories). During the debate concerning whether to grant American 
citizenship to Puerto Ricans under the Foraker Act, there was a congressional perception 



498 OREGON LAW REVIEW [Vol. 103, 483 

incorporated territories included areas that would become states 
and would have all parts of the U.S. Constitution applicable to them, 
while unincorporated territories were not intended for statehood and 
were subject only to fundamental parts of the U.S. Constitution.85 
Because the Downes Court concluded that Puerto Rico was an 
unincorporated territory belonging to the United States, the Court held 
that the U.S. Constitution did not fully apply to it.86 Subsequent 
Supreme Court decisions followed the Downes incorporation doctrine 
and defined the United States’ relationship with its territories as one 
other than that of equals.87 Puerto Rico’s inequality vis-à-vis the United 

that these people of mixed blood were possibly not suitable to become part of the United 
States. See RONALD FERNANDEZ, THE DISENCHANTED ISLAND: PUERTO RICO AND THE 
UNITED STATES IN THE TWENTIETH CENTURY 13 (2d ed. 1992) (stating that members of 
Congress had a negative view of Puerto Ricans because of their African and indigenous 
Indian heritage and skin color). 

85 See Downes, 182 U.S. at 339 (noting no incorporation for territory if Treaty does not 
sponsor incorporation until Congress supports incorporation); Shaw, supra note 39, at 1015 
(defining unincorporated territories). 

86 See Downes, 182 U.S. at 287 (holding that the Constitution’s revenue clauses do not 
extend to territories belonging to the United States); see also Van Dyke, supra note 79, at 
457 (“[B]ecause ‘territories’ were not the constitutional equivalents of ‘states,’ they were 
subject to greater Congressional control.”). The Downes Court suggested that a distinction 
should be drawn between two types of rights enforced by the Constitution: natural and 
artificial. See Downes, 182 U.S. at 282–83 (explaining natural rights as those not subject to 
alteration of Congress, such as freedom of speech and religion, due process, and right of 
access to courts). Artificial rights include “the rights to citizenship, to suffrage, . . . and to 
the particular methods of procedure pointed out in the Constitution, which are peculiar to 
Anglo-Saxon jurisprudence, and some of which have already been held by the States to be 
unnecessary to the proper protection of individuals.” Id. at 283 (finding Congress must be 
allowed flexibility as to the application of artificial rights to territories) (citation omitted). 
The Court held that only natural rights automatically apply to people living in territories. 
See id. at 283 (noting aliens’ interest in life, liberty, and property protected); see also PRATT, 
supra note 41, at 162 (discussing Downes and the difference between fundamental (natural) 
and formal (artificial) provisions of the Constitution). 

87 See Dorr v. United States, 195 U.S. 138, 148 (1904) (holding that right to a jury trial 
was not fundamental and, thus, did not apply to unincorporated territory); see also Balzac 
v. Porto Rico, 258 U.S. 298, 313 (1922) (finding that Congress did not intend Organic Act 
of 1917 as means to incorporate Puerto Rico). From the conquest of Puerto Rico until 1917, 
the United States expanded its sphere of influence throughout the Caribbean. The United 
States still refused to officially acknowledge its expansionism, so it developed a system of 
“protectorates” by which it gained control over a number of small republics in the 
Caribbean. See Treaty of Paris, supra note 40, art. IX; see also U.S. Const. art. IV., § 3, cl. 
2 (“The Congress shall have Power to dispose of and make all needful Rules and Regulations 
respecting the Territory or other Property belonging to the United States; and nothing in this 
Constitution shall be so construed as to Prejudice any Claims of the United States, or of any 
particular State.”). Under the Treaty of Paris, sovereignty over the Philippines, Guam, and 
Puerto Rico passed from Spain to the United States. See Treaty of Paris, supra note 39, at 
art. II (noting Spain’s relinquishment of sovereignty over ceded lands). The citizens of 



2025] Race and Empire: The United States Over Puerto Rico 499

States was literally a matter of legal precedent. To this day, the Insular 
Cases remain precedent, and the Supreme Court repeatedly follows 
them.88  

III 
THE COMMONWEALTH’S FICTION OF SELF-RULE 

The era of unabashed U.S. imperialism would eventually yield to a 
period of more sympathetic administrators, brought about by 
dislocations in the colonial order caused by the Great Depression, 
World War II, and the Cold War. Puerto Rico’s monocultural 
plantation economy, dominated by U.S. sugar corporations, was 
extremely vulnerable to global price fluctuations.89 Like most 
oligopolies, it crashed during the Great Depression, leaving thousands 
of poor, rural Puerto Rican workers unemployed.90 Their plight was 
exacerbated by the fact that Puerto Rico was under the control of aloof 
U.S. governors who ruled in the interest of U.S. businesses, rather than 
for the benefit of those they governed.91 In this colonial scheme, Puerto 
Ricans had limited input. Governors were appointed by the U.S. 
government, and they and their cabinets ruled supreme, with the Puerto 
Rican-elected legislature left with just the power to say “no” and block 
legislation.92 The constant tug-of-war between overbearing U.S. 
governors and the Puerto Rican legislature added to U.S. racial 
stereotypes of Puerto Ricans.93 Americans believed, as a direct result 
of Puerto Ricans’ Spanish culture and alleged inferior racial makeup, 
that they were ungrateful obstructionists who were unfit for self-rule.94 
To make matters worse, the U.S. colonial master had spent decades 
trying to Americanize Puerto Rican children in a vain effort to erase a 
deeply rooted, centuries-old Latin American culture that Puerto Ricans 
expressed with pride and that served as a form of passive resistance 

Puerto Rico were not, however, granted U.S. citizenship. See Cabranes, supra note 40, at 4 
(noting the Treaty of Paris did not promise Puerto Rican U.S. citizenship). PRATT, supra 
note 41 at 115. 

88 See infra, notes 188–201 and accompanying text. 
89 CÉSAR J. AYALA, AMERICAN SUGAR KINGDOM: THE PLANTATION ECONOMY OF THE 

SPANISH CARIBBEAN, 1898-1934, at 148–82 (1999). 
90 Id. 
91 Id. at 46. 
92 TRÍAS MONGE, supra note 5, at 90. 
93 NELSON A. DENIS, WAR AGAINST ALL PUERTO RICANS: REVOLUTION AND TERROR 

IN AMERICA’S COLONY 254 (2015). 
94 Id. 



500 OREGON LAW REVIEW [Vol. 103, 483 

against the cultural onslaught of colonialism.95 U.S. administrators, 
increasingly frustrated by Puerto Rican resistance, simply gave up on 
the plan in view of the Puerto Ricans’ presumed unwillingness to 
learn.96 

But during the Great Depression, the catastrophic consequences of 
Puerto Rico’s plantation model were evident even to the crassest U.S. 
colonial administrators.97 That model required dramatic changes, 
lest Puerto Ricans would drift into the arms of those that called for 
independence from the United States. Indeed, as the Great Depression 
was battering the colony, many Puerto Ricans started questioning 
the wisdom of the colonial association with the United States.98 Few 
could argue that the island’s economy and the well-being of Puerto 
Ricans had improved under U.S. rule. Quite the opposite: Puerto 
Rico’s economy was at its lowest point in decades, and support for 
independence was on the rise.99 To counter the trend, the Franklin D. 
Roosevelt administration (and later, the Harry S. Truman 
administration) appointed more sympathetic New Deal governors who 
sought to work with Puerto Rico’s moderate political elites.100 The 
“friendly” U.S. governors aimed to present a moderate political 
alternative to radical calls for independence while promising a new 
economic model for Puerto Rico. That was the case of Rexford 
Tugwell, who governed Puerto Rico from 1941 to 1946.101 Tugwell 
was a strong supporter of Luis Muñoz Marín’s Partido Popular 
Democrático (Popular Democratic Party, or PPD), which advocated for 
a new political status for Puerto Rico. Tugwell was also instrumental 
in the appointment of his successor, Jesús T. Piñero, the first Puerto 
Rican tapped by the White House to become governor (1946–1949).102 

Piñero worked closely with the Truman administration, which 
amended the Organic Act of Puerto Rico in 1947,103 allowing for the 
election of Puerto Rican governors. Truman called it “a great step 

95 Id. at 37–42. 
96 SOLSIREE DEL MORAL, NEGOTIATING EMPIRE: THE CULTURAL POLITICS OF 

SCHOOLS IN PUERTO RICO, 1898–1952, at 42 (2013). 
97 DIETZ, supra note 58, at 135–81. 
98 CÉSAR J. AYALA & RAFAEL BERNABE, PUERTO RICO IN THE AMERICAN CENTURY: 

A HISTORY SINCE 1898, at 95–116 (2009). 
99 Id. 
100 Id. at 97. 
101 See MICHAEL V. NAMORATO, REXFORD G. TUGWELL: A BIOGRAPHY 3–7 (1988). 
102 See SURENDRA BHANA, THE UNITED STATES AND THE DEVELOPMENT OF THE 

PUERTO RICAN STATUS QUESTION, 1936-1968, at 42–43 (1975). 
103 Organic Act of Puerto Rico, Pub. L. No. 362, ch. 490, 61 Stat. 770, 770–73 (1947). 



2025] Race and Empire: The United States Over Puerto Rico 501

toward complete self-government.”104 In turn, Piñero and the Puerto 
Rican legislature, which was controlled by the PPD, passed the “Ley 
de la Mordaza” (Gag Law) in 1948.105 It severely restrained all forms 
of speech critical of the U.S. colonial administration and/or in favor of 
independence for Puerto Rico, including singing patriotic songs and 
displaying the Puerto Rican flag.106 The road was paved for the 
ascension of Puerto Rican Senate President Luis Muñoz Marín to the 
governorship in 1948 (as the first elected governor of Puerto Rico) and 
for a redefinition of Puerto Rico’s colonial status.107 Like Piñero, 
Muñoz Marín worked closely with the U.S. government, which was 
under pressure from the international community to decolonize Puerto 
Rico as postwar European empires crumbled. The U.S. Congress 
passed the Puerto Rican Federal Relations Act of 1950, setting in 
motion a process for the Puerto Rican legislature to draft a new 
Constitution for the territory.108 

The new Constitution of the Commonwealth of Puerto Rico was 
widely approved by the Puerto Rican electorate and officially 
proclaimed on July 25, 1952, fifty-four years to the date when U.S. 
troops landed in Puerto Rico.109 The Constitution of the Estado Libre 
Asociado de Puerto Rico (Free Associated State of Puerto Rico) 
granted the government of the Commonwealth jurisdiction over most 
internal affairs while leaving national affairs (e.g., currency, defense, 
customs, and treaties) in the hands of the federal government—much 
like a state of the Union.110 Unlike a state of the Union, however, 
Puerto Rico is an unincorporated territory, and its voters are ineligible 
to elect congress members (i.e., senators and representatives) to the 

104 HARRY S. TRUMAN, LETTER TO GOVERNOR PINERO OF PUERTO RICO UPON 
SIGNING BILL PROVIDING FOR AN ELECTED GOVERNOR (Aug. 5, 1947) reprinted in HARRY 
S. TRUMAN LIBR. MUSEUM, https://www.trumanlibrary.gov/library/public-papers/166
/letter-governor-pinero-puerto-rico-upon-signing-bill-providing-elected [https://perma.cc
/4FHH-Q8VH] (last visited Feb. 18, 2025).

105 See K.C. Lopez, Ley de la Mordaza: The Law That Made the Puerto Rican Flag 
Illegal, LEHIGH VALLEY PUB. MEDIA (Sept. 16, 2019), https://www.wlvt.org/blogs/lehigh 
/ley-de-la-mordaza-the-law-that-made-the-puerto-rican-flag-illegal/. 

106 Id.  
107 AYALA & BERNABE, supra note 98, at 161. 
108 Puerto Rican Federal Relations Act, Pub. L. No. 600, ch. 446, 64 Stat. 319 (1950). 
109 The date is an official holiday in Puerto Rico, but members of the pro-independence 

movement still remember it as the date when the United States forcibly took over the 
territory. Vernon D. Northrop, The Acting Secretary of the Interior (Northrop) to the 
Secretary of State, OFF. HISTORIAN, https://history.state.gov/historicaldocuments/frus1952 
-54v03/d902 [https://perma.cc/JNU3-EF4H] (last visited Mar. 16, 2025).

110 See CONSTITUCIÓN DEL ESTADO LIBRE ASOCIADO DE PUERTO RICO (1952),
https://www.cijc.org/es/NuestrasConstituciones/PUERTO-RICO-Constitucion.pdf.



502 OREGON LAW REVIEW [Vol. 103, 483 

U.S. Congress. Moreover, residents of Puerto Rico do not get to 
participate in U.S. presidential elections, as territories do not send 
electors to the U.S. Electoral College.111 Finally, all acts of the 
Commonwealth Government are subject to review by the U.S. 
Congress, which has the final say regarding territorial affairs.112 
Therefore, despite its official name in Spanish, Puerto Rico’s 
Commonwealth is not free nor associated nor a state.113 It remains a 
colony over which the U.S. government retains control, in the form of 
veto power by the U.S. Congress and judicial review by the U.S. 
Supreme Court.114 Even the territory’s uncertain future cannot be 
decided without the express approval of the U.S. Congress—a body in 
which Puerto Ricans have no representation save for a nonvoting 
Resident Commissioner.115 Even if Puerto Rican voters were to 
overwhelmingly petition for statehood, it would be up to Congress to 
consider the request.116 If Puerto Ricans wanted instead to become a 
sovereign nation, Congress has the last word. Moreover, what 

111 AYALA & BERNABE, supra note 98, at 230. 
112 CONSTITUCIÓN DEL ESTADO LIBRE ASOCIADO DE PUERTO RICO, art. VII, § 3 (1952), 

https://www.cijc.org/es/NuestrasConstituciones/PUERTO-RICO-Constitucion.pdf. 
113 Senator Patrick Moynihan stated that the United States occupied the “splendid” 

island of Puerto Rico at a time when over a third of the world was a colony of some 
sovereign. See 137 CONG. REC. S3971 (1991) (describing the United States at the time of 
occupation as a “colonial power”). Moynihan continued that this worldwide colonization 
trend first became unacceptable to Puerto Rico, then to the United States, and finally to the 
world. See id. (refuting Cuban charges that the United States currently enjoys a colonial 
relationship with Puerto Rico). 

114 The recent passage of the PROMESA Act, for example, created a board to manage 
Puerto Rico’s financial affairs. See, e.g., Puerto Rico Oversight, Management, and 
Economic Stability Act (PROMESA), 48 U.S.C. §§ 2101–2241 (2016). 

115 What Is a Resident Commissioner?, PUERTO RICO 51ST (Aug. 28, 2020), https:// 
www.pr51st.com/what-is-a-resident-commissioner/ [https://perma.cc/ZY9W-U5BZ]. 

116 In 2020, a nonbinding status referendum asked Puerto Rican voters whether they 
wanted Puerto Rico to immediately become a state of the Union or not. The “Yes” option 
won with fifty-two percent of the vote (turnout was just fifty-four percent), which is the 
closest that statehood has been to becoming a majority option for Puerto Ricans. Cristina 
Corujo, Puerto Rico Votes in Favor of Statehood. But What Does It Mean for the Island?, 
ABC NEWS (Nov. 8, 2020, 8:21 AM), https://abcnews.go.com/US/puerto-rico-votes-favor 
-statehood-island/story?id=74055630 [https://perma.cc/P6LN-8NKM].



2025] Race and Empire: The United States Over Puerto Rico 503

statehood117 or independence118 would look like (i.e., terms of 
annexation or separation) would be ultimately decided by Congress—
not by Puerto Ricans.119 Even minor tweaks to Commonwealth status 
(which pro-Commonwealth supporters currently want) would require 
the express approval of the U.S. Congress, as mentioned above.120 

What the implementation of the Commonwealth accomplished was 
twofold: First, it created a fiction of self-rule by Puerto Ricans; and 
second, by doing so, it absolved the United States of imperial 
responsibility regarding the mishandling of its colony.121 In 1952, 
Puerto Ricans loyal to the PPD proclaimed that they were finally in 
charge of the territory’s affairs—and to a certain extent, they were. But 
they failed to mention that they were not fully in charge of the 
territory’s affairs.122 Puerto Rico remains an unincorporated territory 
of the United States, over which the latter retains full sovereignty.123 
No matter what Puerto Ricans decide to do in the Commonwealth, they 
govern only at the pleasure of the U.S. government, which can always 
review and overturn their actions.124 Yet, the façade of self-rule has 
been widely promoted as the best of both worlds: Puerto Ricans rule 
their island and enjoy U.S. citizenship without the inherent risks 

117 With thin margins deciding control over the U.S. House of Representatives and the 
Senate, it is unlikely that Congress will seriously consider a petition for statehood from 
Puerto Rico. The potential addition of two Democratic senators and four to five Democratic 
representatives from the new state could tilt the precarious balance of power in Congress. 
Thus, Republicans are sure to block it. See Rafael Bernal, Push to Change Puerto Rico 
Status Faces New Challenges, THE HILL (Apr. 21, 2023, 3:09 PM), https://thehill.com/latino 
/3963153-push-to-change-puerto-rico-status-faces-new-challenges/ [https://perma.cc 
/V5ZX-VKFU]. 

118 Considering that Puerto Rico is unlikely to become a state of the Union, the authors 
feel that the only path forward for the island territory is to become an independent nation. 

119 Vann R. Newkirk II, Puerto Rico’s Plebiscite to Nowhere, ATLANTIC (June 
13, 2017), https://www.theatlantic.com/politics/archive/2017/06/puerto-rico-statehood 
-plebiscite-congress/530136/ [https://perma.cc/4PC4-PLSA].

120 Puerto Rico has rarely been a priority for the U.S. government, and in an era of party
polarization, it is extremely unlikely that both major parties would agree on granting
political or economic concessions to the territory. See Ryan Struyk, Here’s What
Would Happen to US Politics if Puerto Rico Became a State, CNN (Oct. 14, 2017, 10:51
AM), https://www.cnn.com/2017/10/14/politics/puerto-rico-state-congress-white-house
/index.html [https://perma.cc/Z2EF-U9UM].

121 PEDRO A. MALAVET, AMERICA’S COLONY: THE POLITICAL AND CULTURAL
CONFLICT BETWEEN THE UNITED STATES AND PUERTO RICO 43–45 (2004).

122 Peter J. Fliess, Puerto Rico’s Political Status Under Its New Constitution, 5 W. POL. 
Q. 635, 646–48 (1952).

123 MALAVET, supra note 121, at 40.
124 See Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA),

48 U.S.C. §§ 2101–2241 (2016). 



504 OREGON LAW REVIEW [Vol. 103, 483 

associated with becoming a sovereign nation that has to fend for itself 
in a dangerous world.125 In reality, Puerto Ricans do not live in either 
world.126 They do not rule the Commonwealth, their U.S. citizenship 
is second-class, and even if they wanted to become independent,127 
they would need permission from the U.S. government.128 The colonial 
relationship between the United States and Puerto Rico is a one-way 
street, despite appearances to the contrary.129 

The new political status of Puerto Rico also whitewashed the image 
of the United States, taking away from its actions as an imperial power. 
According to this narrative, the United States was a benevolent 
administrator that perhaps made a few mistakes130 (perhaps because of 
its lack of colonial experience), but it was always looking out for Puerto 
Rico’s best interests.131 And when the time was right, it handed the 
reigns over to the Puerto Rican people. However, the United States was 
not a benevolent administrator.132 In the best case, Puerto Rico was 
neglected by the United States.133 In the worst case, the United States 
exploited its territory and let U.S. corporations do the same.134 The 
U.S. Government, in collusion with its Puerto Rican allies, stifled 

125 See Greg Allen, Puerto Rico Celebrates 100 Years of U.S. Citizenship, NPR (Mar. 2, 
2017, 4:35 PM), https://www.npr.org/2017/03/02/518197139/puerto-rico-celebrates-100 
-years-of-u-s-citizenship [https://perma.cc/J7VJ-CXWR].

126 See generally FERNANDEZ, supra note 84, at 165–95 (explaining the narratives used
to justify the United States’ imperialist actions in Puerto Rico throughout Puerto Rican
history).

127 Jaquira Díaz, Let Puerto Rico Be Free, ATLANTIC (Sept. 20, 2022), https://
www.theatlantic.com/magazine/archive/2022/11/puerto-rico-independence-not-statehood
/671482/ [https://perma.cc/UY4G-PHDA].

128 See Yarimar Bonilla, For Puerto Ricans, Another Reminder That We Are Second-
Class Citizens, N.Y. TIMES (May 19, 2022), https://www.nytimes.com/2022/05/19/opinion
/puerto-rico-supreme-court-social-security.html [https://perma.cc/WRM2-P7SC].

129 See Román, supra note 62, at 10–15. 
130 For example, Dr. Cornelius P. Rhoads, a distinguished U.S. medical researcher, saw 

Puerto Ricans as an inferior race. He seemingly confessed to killing a handful of his patients 
while serving on the island. See Douglas Starr, Revisiting a 1930s Scandal, AACR to Rename 
a Prize, 300 SCI. 573, 573 (2003). 

131 U.N. SPECIAL COMM. ON DECOLONIZATION, Special Committee on Decolonization 
Approves Text Calling upon United States to Initiate Self-determination Process for Puerto 
Rico (June 17, 2013), https://press.un.org/en/2013/gacol3255.doc.htm [https://perma.cc 
/UC72-ZHTA].  

132 Id. 
133 Harold J. Toro, Lessons from Puerto Rico: Inter-Country Relationships, Crises, and 

Human Thriving, KEOUGH SCH. GLOB. AFFS. (Oct. 29, 2020), https://keough.nd.edu/lessons 
-from-puerto-rico-inter-country-relationships-crises-and-human-thriving/ [https://perma
.cc/YTA6-3LXF].

134 AYALA & BERNABE, supra note 98, at 335–39. 



2025] Race and Empire: The United States Over Puerto Rico 505

dissent and ruled in undemocratic ways, unbefitting America’s 
democratic institutions.135 For Puerto Ricans, American democracy 
was always an ocean away. After the implementation of 
Commonwealth status in 1952, Americans portrayed themselves as the 
ones who granted Puerto Ricans freedom and self-rule, while sweeping 
the territory’s ugly past under the rug.136 To this day, the fairy tale of 
Puerto Ricans being in control of their homeland is still being told, but 
mounting evidence to the contrary has poked holes in that rosy 
narrative.137 

135 DENIS, supra note 93, at 216–17. 
136 A case in point was Truman’s handling of the threat posed by members of the pro-

independence Nationalist Party, led by Pedro Albizu Campos. The federal and territorial 
government fiercely persecuted Albizu Campos and his followers, keeping tabs on their 
movements and daily life. When the Nationalists finally resorted to armed insurrection in 
1950, the U.S. government responded with a show of force: activating the military, arresting 
dozens of Nationalists, and sentencing them to lengthy terms in federal prison for sedition. 
See id. at 209–21. 

137 See Lyle Denniston, Constitution Check: Is Puerto Rico Just a Colony Under 
Congress’s Control?, NAT’L CONST. CTR. (Oct. 2, 2015), https://constitutioncenter.org 
/blog/constitution-check-is-puerto-rico-just-a-colony-under-congresss-control [https:// 
perma.cc/UAP4-UGN2]. For a few years now, all three main political parties in Puerto Rico 
have agreed that the current political status has reached a dead end, though they disagree on 
what should come next: statehood, independence, or an enhanced version of the 
Commonwealth. 



506 OREGON LAW REVIEW [Vol. 103, 483 

IV 
THE MORE THINGS CHANGE . . . 

As the demeaning picture of a U.S. President faking a basketball 
pass to a people amid recovery from a devastating natural disaster 
highlights, perhaps today’s colonial depictions are not as openly 
racist as in the past, but they are nonetheless equally demeaning and 
insulting.138  

Despite labels suggesting autonomy or free association (whatever 
that means), Puerto Rico remains a colony in the U.S. Empire. The 
plague and plight associated with empires remains in full force today, 
as much as it did over a century ago. The wrongs of colonial rule, such 
as unequal treatment, lack of effective representation in its own 
government or that of the mainland colonizer, or any ability to dictate 
its future, prevail with equal force today as they did well over a century 
ago when the United States first acquired Puerto Rico. Therein lies the 
irony and perhaps wizardry of the U.S. colonial endeavor.139 The great 
champion of democracy, liberty, and freedom possesses colonies with 
millions of residents living in an unequal, disenfranchised, subordinate 
state—especially when compared to their mainland counterparts—and 

138 See David A. Graham, Trump’s Puerto Rico Visit Is a Political Disaster, ATLANTIC 
(Oct. 3, 2017, 2:36 PM), https://www.theatlantic.com/politics/archive/2017/10/trump-puerto 
-rico-visit/541869/ [https://perma.cc/B97J-G9AZ]. Photo by Mandel Ngan/AFP.

139 See ROMÁN, supra note 1.



2025] Race and Empire: The United States Over Puerto Rico 507

no one seems to care.140 Puerto Rico, the largest of these overseas 
colonies with over three million inhabitants who are U.S. citizens by 
birth, exemplifies the novel and sophisticated means by which this 
twenty-first century empire is maintained.141 It is a scenario where 
despite reality, roughly half of the colonial subjects did not, until 
perhaps recently, perceive themselves as subject to U.S. direct rule.  

As the preceding pages demonstrate, the United States as a so-called 
advanced nation created legal frameworks that gave the appearance of 
supporting sovereignty in response to growing global calls for freedom 
and emancipation.142 In doing so, the colonizer ultimately kept in place 
their strategic, and perhaps more importantly, economic influence.143 
Such a framework exemplifies the U.S.-Puerto Rico colonial endeavor, 
one that has existed for well over a century and will likely continue to 
do so with no readily available resolution. The U.S.-Puerto Rico 
colonial relationship is but part of a tale of annexation, unwitting 
acceptance of colonial rule, and an abdication of principles that are 
purported to be foundational precepts of western democracy. However, 
for Puerto Rico and its residents, there is only the façade of liberty and 
freedom from colonial rule. The U.S. Government uses labels such as 
commonwealth status, freely associated state, or self-rule to suggest 
autonomy. What exists is subjugation under sophisticated colonial rule. 

Currently facing impending economic collapse due to failed U.S. 
economic policies, such as the end of Operation Bootstrap and its 
progeny,144 as well as the crippling consequences of Hurricane Maria 
and the destruction of its electrical system and much of its 
infrastructure,145 Puerto Rico does not have a bright economic future. 
On September 20, 2017, Hurricane Maria, a category four storm (the 

140 Id. 
141 See Román, supra note 62, at 45. 
142 Id. at 46. 
143 Henry J. Richardson III, The Danger of New Legal Colonialism, 104 AM. SOC’Y 

INT’L L. 393, 393 (2010) (questioning the implications “on international law and the 
freedom of peoples of color in the Southern Hemisphere from foreign military intervention, 
intervention which is claimed to be legalized by the consent of their own territorial 
governments.”). 

144 John W. Schoen, Here’s How an Obscure Tax Change Sank Puerto Rico’s Economy, 
CNBC (Sept. 26, 2017, 4:17 PM), https://www.cnbc.com/2017/09/26/heres-how-an 
-obscure-tax-change-sank-puerto-ricos-economy.html [https://perma.cc/JS85-9AWA].

145 Of course, the few who care about Puerto Rico’s colonial plight can easily forget
when the imperial ruler visited the territory after Hurricane Maria ravaged Puerto Rico, only
to see a president throwing paper towels at the people as if they were basketballs. It was no
time to pretend to be an NBA star when U.S. citizens faced dire circumstances. Graham,
supra note 138.



508 OREGON LAW REVIEW [Vol. 103, 483 

first storm of such magnitude in nearly a century), directly hit Puerto 
Rico and caused widespread damage across the island.146 Puerto Rico 
had not experienced such devastation in decades.147 Water sources 
became contaminated, debris blocked roads, and most islanders lost 
power for months because of the electric grid’s collapse.148 Maria had 
sustained winds as high as 155 miles per hour, with resulting damages 
estimated at $90 billion,149 making it the third most costly storm in U.S. 
history.150 A year after the storm, the Governor of Puerto Rico raised 
the hurricane’s official death toll from 64 to 2,975 people.151 The 
increased death toll followed extensive research published in the New 
England Journal of Medicine.152 Despite the devastation, and because 
of its colonial relationship, Puerto Rico was unable to independently 
seek aid and had to rely on the good graces of its overseer after facing 
an estimated $40–$85 billion in losses caused by Hurricane Maria.153 

146 Victoria Zorovich, The Perfect Storm: Weathering Puerto Rico’s Fiscal Crisis in the 
Wake of Hurricane Maria, 46 HOFSTRA L. REV. 1067, 1067 (2018).  

147 See Olympia Duhart, Emotional Appraisals in the Wake of Hurricanes Harvey and 
Maria, 54 WAKE FOREST L. REV. 973, 981 (2019). 

148 Hurricanes Irma and Maria: Impact and Aftermath, RAND, https://www.rand.org 
/hsrd/hsoac/projects/puerto-rico-recovery/hurricanes-irma-and-maria.html [https://perma 
.cc/9RE4-BFNN] (last visited Jan. 4, 2025).  

149 See David Brindley, Months After Hurricane Maria, Puerto Rico Still Struggling, 
NAT’L GEOGRAPHIC, https://www.nationalgeographic.com/magazine/2018/03/puerto-rico 
-after-hurricane-maria-dispatches/ [https://perma.cc/6EDH-74C5] (last updated Aug. 30,
2018); Luis Ferré-Sadurní & Anemona Hartocollis, Maria Strikes, and Puerto Rico Goes 
Dark, N.Y. TIMES (Sept. 20, 2017), https://www.nytimes.com/2017/09/20/us/hurricane 
-maria-puerto-rico-power.html [https://perma.cc/F796-LWSV]; PETER ANAGNOSTAKOS, 
ET AL., BANKS VERSUS HURRICANES: A CASE STUDY OF PUERTO RICO AFTER 
HURRICANES IRMA AND MARIA 1 (2023), https://www.newyorkfed.org/medialibrary 
/media/research/staff_reports/sr1078.pdf [https://perma.cc/W9FQ-P4UL]; FEMA, 
MITIGATION ASSESSMENT TEAM REPORT HURRICANES IRMA AND MARIA IN PUERTO 
RICO, iii (2018), https://www.fema.gov/sites/default/files/2020-07/mat-report_hurricane 
-irma-maria-puerto-rico_2.pdf.

150 Duhart, supra note 147, at 980.
151 See Brindley, supra note 149; Ferré-Sadurní & Hartocollis, supra note 149.  
152 See Duhart, supra note 147, at 981 (citing Study Estimates Prolonged Increase in 

Puerto Rican Death Rate After Hurricane Maria, HARVARDFXB (May 29, 2018), https:// 
fxb.harvard.edu/2018/05/29/study-estimates-prolonged-increase-in-puerto-rican-death-rate 
-after-hurricane-maria/ [https://perma.cc/Y88Y-EAEY]); Nishant Kishore et al., Mortality
Rate in Puerto Rico After Maria, 379 NEW ENG. J. MED. 162, 163 (2018) (“According to 
the Centers for Disease Control and Prevention, deaths can be directly attributed to a tropical 
cyclone if they are caused by forces related to the event, such as flying debris, or if they are 
caused by unsafe or unhealthy conditions resulting in injury, illness, or loss of necessary 
medical services.”). 

153 Nicole Friedman, Hurricane Maria Caused as Much as $85 Billion in Insured 
Losses, AIR Worldwide Says, WALL ST. J. (Sept. 25, 2017, 4:53 PM), https://www.wsj 



2025] Race and Empire: The United States Over Puerto Rico 509

During this period, Puerto Rico also faced $70 billion in bond debt and 
$49 billion in unfunded pension obligations.154 

Because of Puerto Rico’s dire financial circumstances, the United 
States established the Financial Oversight and Management Board 
(“the Board”), under the Puerto Rico Oversight, Management, and 
Economic Act (PROMESA) of 2016. The move manifests the 
most recent incarnation of the colonial nature of the United States-
Puerto Rico relationship.155 In 2015, domestic and international 
creditors braced for a historic financial event as Puerto Rico was “on 
the brink of catastrophic default.”156 “After almost a decade of 
economic headwinds, substantial money-borrowing, and poor fiscal 
management, [the territory]’s financial condition was quickly 
deteriorating.”157 PROMESA stemmed from Puerto Rico’s 
progressive indebtedness since the late twentieth century when the 
Puerto Rican government borrowed heavily to cover budget 
shortfalls,158 many of which were the direct result of the United 
States’s ending of Operation Bootstrap. To capitalize on increasing 
economic challenges, investors purchased increasing amounts of 
Puerto Rican bonds.159 As of May 2017, Puerto Rico’s debt amounted 
to a staggering $123 billion—an unpayable amount given Puerto 
Rico’s incapacity to raise more revenue.160 To make matters worse, 
Puerto Rico—unlike stateside municipalities—cannot declare 
bankruptcy because it is just a territory and has to service its debt ahead 
of other expenses in its annual budget.161 That made Puerto Rican 
bonds extra attractive for vulture capitalists: Regardless of how bad the 

.com/articles/hurricane-maria-caused-as-much-as-85-billion-in-insured-losses-air-world 
wide-says-1506371305 [https://perma.cc/KFK2-GQTX]. 

154 Nick Brown, Puerto Rico Budget to Protect Pension Payments: Governor, REUTERS 
(May 31, 2017, 3:48 PM), https://www.reuters.com/article/us-puertorico-debt-budget 
/puerto-rico-budget-to-protect-pension-payments-governor-idUSKBN18R3C8 [https:// 
perma.cc/9H6Z-HCC9]. 

155 PROMESA, 130 Stat. 549, Pub. L. No. 114-187. 
156 Tina Meng, The Perfect Storm: Puerto Rico’s Evolving Debt Crises Under 

PROMESA, 2019 COLUM. BUS. L. REV. 367, 367 (2019).  
157 Id. 
158 Id. at 369−70. 
159 Id.  
160 Juan González, Puerto Rico’s $123 Billion Bankruptcy Is the Cost of U.S. 

Colonialism, INTERCEPT (May 9, 2017, 9:23 AM), https://theintercept.com/2017/05/09 
/puerto-ricos-123-billion-bankruptcy-is-the-cost-of-u-s-colonialism/ [https://perma.cc 
/MLD7-8C7T].  

161 Id. 



510 OREGON LAW REVIEW [Vol. 103, 483 

bonds were or how long it would take for investors to get their money 
back, payment was all but guaranteed.162 

As a result, the colonial ruler passed PROMESA via Congress and 
created the Board, which was established to oversee Puerto Rico’s 
recovery process.163 The Board’s establishment essentially created a 
colonial superstructure overseeing the acts of the Puerto Rican 
government. “Among the Board’s powers are approval of fiscal plans, 
approval of budgets for Puerto Rico, and review of territorial legislation 
to ensure its compliance with the current fiscal plan.”164 “An essential 
feature of PROMESA is the automatic stay provision.”165 One key 
aspect of the Board is that it “operates as a stay of various [Puerto 
Rican] proceedings or acts, including (1) the commencement or 
continuation of a judicial, administrative, or other action or proceeding 
against the Government of Puerto Rico that was or could have been 
commenced before the enactment of PROMESA.”166 If the Board finds 
that the government of Puerto Rico is not in compliance with 
PROMESA (by meeting its benchmarks regarding the payment of 
Puerto Rico’s obligations), it can develop its own fiscal plan, and if the 
Board finds that a proposed budget is not in compliance, it can make 
reductions or modifications to the budget as it sees fit.167 

For Puerto Ricans, the Board is an example of an increasingly 
unvarnished colonial relationship, where the actions of the U.S. 
imperial masters and their fiscal emissaries speak louder than the 
reassuring tone of the Commonwealth government, which tries to give 
the impression that it is in control of the situation (as was the case 
during the Ricardo Roselló administration, 2017–2019).168 The Board 
also represents the last nail in the coffin of failed economic 
development efforts by the United States that sought to transform 
Puerto Rico’s agrarian economy into an industrial one during the 
twentieth century.169 Nowadays, Puerto Rico’s economy is neither 
agrarian nor industrial nor service-oriented; it is an unmitigated disaster 
that struggles to stay afloat. Because it is not a sovereign state, Puerto 

162 ED MORALES, FANTASY ISLAND: COLONIALISM, EXPLOITATION, AND THE 
BETRAYAL OF PUERTO RICO 123–27 (2019).  

163 Daniel A. Klein, Annotation, PROMESA, 48 U.S.C. §§ 2101 et seq., 35 A.L.R. Fed. 
3d Art. 9 (2018).  

164 Id. 
165 Id. 
166 Id. 
167 Id. 
168 MORALES, supra note 162, at 165–66. 
169 Id.  



2025] Race and Empire: The United States Over Puerto Rico 511

Rico cannot negotiate to raise capital and cannot declare bankruptcy or 
seek debt relief as other countries do. Puerto Rico can only wait to see 
what the metropole will decide, and the latter decided to create a 
bureaucratic oversight board that decides every significant fiscal and 
budgetary issue for the island, placing the fate of its economic future in 
uncharted territory.170  

Unfortunately, the United States lacks a stellar track record for 
creating economic prosperity on the island, General Miles’ promises 
notwithstanding.171 It must not be forgotten that, as part of the 
United States’ plan to develop Puerto Rico, Congress instituted 
“Operation Bootstrap,” a system of economic incentives to attract U.S. 
manufacturing companies to the island.172 Critical to that planned 
development was the passage of Section 936 of the U.S. IRS Code, 
which incentivized private U.S. capital growth by making profits of 
U.S. corporations on the island tax-free.173 Sadly, after billions of lost 
tax revenues and billions made by U.S. corporations in the territories, 
the economic boom never materialized.174 During Operation 
Bootstrap, the United States also allowed Puerto Rico to issue “triple 
tax-exempt” bonds, which did not require investors to pay federal, 
state, or local taxes on interests earned from these debt instruments.175 
In 2006, Congress repealed Section 936 and its tax exemptions, and the 
consequences of that repeal had significant negative ramifications for 
Puerto Rico’s economy: Corporations and businesses quickly left the 
island and local unemployment rates skyrocketed.176 Puerto Rico’s 

170 Heather Long, Puerto Rico’s Crisis: How Did It Get So Bad?, CNN (May 12, 2016, 
12:58 PM), http://money.cnn.com/2016/05/12/investing/puerto-rico-debt-crisis/index.html 
[https://perma.cc/PD73-DG4B]. 

171 Nelson Denis, After a Century of American Citizenship, Puerto Ricans Have Little 
to Show for It, NATION (Mar. 2, 2017), https://www.thenation.com/article/archive/after-a 
-century-of-american-citizenship-puerto-ricans-have-little-to-show-for-it/ [https://perma
.cc/NT8K-6TSC].

172 See Schoen, supra note 144. On Operation Bootstrap’s economic impact, see A.W. 
MALDONADO, BOOM AND BUST IN PUERTO RICO: HOW POLITICS DESTROYED AN 
ECONOMIC MIRACLE 24−25 (2021). 

173 See supra notes 168–72, infra notes 174–202, and accompanying text.  
174 Id.  
175 48 U.S.C. § 745 (2012);  Thomas Heath, To the Average Investor, Puerto Rico Debt 

Crash Is More Whimper, Less Bang, WASH. POST (Oct. 10, 2017, 12:29 PM), https://www 
.washingtonpost.com/news/get-there/wp/2017/10/10/to-the-average-investor-puerto-rico 
-debt-crash-is-more-whimper-less-bang/?utm_term=.e90c7e159105 [https://perma.cc 
/S7X9-7D4P]. 

176 Nathan Bomey, 6 Reasons Why Puerto Rico Slid into Financial Crisis, CNBC  
(Oct. 5, 2017, 7:27 AM), https://www.cnbc.com/2017/10/05/6-reasons-why-puerto-rico 
-slid-into-financial-crisis.html [https://perma.cc/EXX2-FX5F].



512 OREGON LAW REVIEW [Vol. 103, 483 

own Great Recession subsequently followed these changes.177 Scores 
of unemployed and underemployed workers, including valuable skilled 
laborers, began leaving the island in search of work on the U.S. 
mainland.178 Puerto Rico’s economy has reached a dead end as it has 
run out of options. 

While the colonial ruler may have passed these laws to assist Puerto 
Rico’s economic recovery, the Board is a colonial institution designed 
to protect U.S. interests in Puerto Rico and not the interests of Puerto 
Ricans themselves.179 It is unlikely that Puerto Rico can get out of this 
fiscal hole without massive injections of federal aid and changes to 
colonial policies that hamstring the Commonwealth’s government. One 
onerous colonial policy, for example, is the 1920 Jones Act.180 That 
protectionist legislation requires the use of U.S. ships for all interstate 
trade which significantly increases shipping costs and, thus, the cost of 
living in overseas territories such as Puerto Rico.181 Because most of 
Puerto Rico’s goods come from the U.S. mainland, Puerto Ricans are 
subject to this interstate trade requirement or forced to find other trade 
partners.182  

Based on over a century of U.S. imperial neglect and U.S. complicity 
in the exploitation of its Caribbean colony by corporate America, we 
do not envision a solution to the crisis that will prioritize the needs of 
Puerto Ricans. Wall Street will defend its bottom line, the U.S. 
Treasury will ensure the Commonwealth pays investors, and ordinary 
Puerto Ricans will be left flapping in the wind.183 If anything, Puerto 
Ricans are in for a lot more economic pain at the hands of the Board 
and—ultimately—Uncle Sam’s colonial policies. 

177 Schoen, supra note 144. 
178 See Patrick Gillespie, Puerto Rico’s Brain Drain: Fewer Children in Schools, CNN 

(Dec. 23, 2015, 11:23 AM), http://money.cnn.com/2015/12/23/news/economy/puerto-rico 
-brain-drain/?iid=EL [https://perma.cc/6WTX-U9LK].

179 Pedro Cabán, Puerto Rico and PROMESA: Reaffirming Colonialism, NEW POL.
(Summer 2017), https://newpol.org/issue_post/puerto-rico-and-promesa-reaffirming
-colonialism/ [https://perma.cc/Q75M-BYFD].

180 Chris Isidore, The Jones Act Has Been Hurting Puerto Rico for Decades, CNN (Sept.
28, 2017, 3:10 PM), https://money.cnn.com/2017/09/28/news/economy/jones-act-puerto
-rico/index.html [https://perma.cc/V77U-39G4].

181 Id.
182 See Colin Grabow, Sorry Jones Act Supporters, the Law Is Still a Bad Deal for Puerto

Rico, CATO INST. (Aug. 30, 2022, 1:22 PM), https://www.cato.org/blog/sorry-jones-act
-supporters-law-still-bad-deal-puerto-rico [https://perma.cc/JYP7-UCMH].

183 Mayra Velez-Serrano, A Long History of Wall Street Bailouts and How Puerto Rico
Will Not Be Different, 9 WORLD REV. POL. ECON. 266, 267 (2018).



2025] Race and Empire: The United States Over Puerto Rico 513

Paternalistic actions by colonial governments are still present 
today, and while discussions about colonialism may seem more tolerant 
or acceptable, they often reflect the same underlying racism that 
existed over a century ago. A vivid example of the newly fashioned 
paternalism is evidenced by a series of articles in the Harvard Law 
Review, much as it did well over a century ago.184 In the 2017 Harvard 
Law Review article, “Developments in the Law: The U.S. Territories,” 
the authors are almost apologetic about U.S. colonial rule. While not 
using openly racist terms as it did in 1898 and 1899,185 the 2017 
publication, dedicated to the territorial relationship, attempted to mask 
their paternalistic, and arguably biased, tones. In the issue’s 
introductory chapter, the author subtly highlights the increased 
autonomy Puerto Rico has received over the twentieth century.186 
Ultimately, this unnamed author admits to the colonial nature of U.S. 
rule, but also observes, “Puerto Rico had moved dramatically toward 
self-determination and self-rule with its constitution.”187  

In the first chapter of the 2017 Harvard issue, another unnamed 
author specifically seeks to turn the classic condemnation of the 
colonial relationship “on its head,” arguing, “the federal-territory 
relationship has more or less gradually progressed toward functionally 
mimicking the federal-state structural relationship.”188 According to 
this author, the United States and Puerto Rico maintain a “territorial 
federalism” relationship.189 Using a so-called on-the-ground pragmatic 
view of the relationship, this author argues that the relationship “has 
provided an avenue by which the territories and their residents have 
reaped federalism’s benefits despite the formal contours of the federal-
territory relationship as reflected in contemporary constitutional 
doctrine.”190 

Despite the evidence presented in our Article, scores of other articles 
written by the lead author for well over a quarter of a century, and 
dozens of other articles from legal scholars in the territory and on the 

184 See Developments in the Law - The U.S. Territories, 130 HARV. L. REV. 1616 (2017). 
185 Id. at 1619. 
186 Id. at 1621–22.  
187 Id. at 1624–25. 
188 Id. at 1632.  
189 Id. at 1632–33.  
190 Id. at 1633.  



514 OREGON LAW REVIEW [Vol. 103, 483 

mainland,191 the new apologists for colonial rule in Harvard’s latest 
infamous law review issue, albeit over a century of a racist colonial 
junket, seek to couch the relationship in the tried-and-true effort as a 
new or special form of sovereignty. The apologists in that Harvard 
issue defy both reality and logic and engage in wishful thinking about 
the crass, colonial U.S.-Puerto Rico relationship. 

The authors supporting the so-called “repurposing project” engage 
in nothing short of code for arguing “these people” are unfit for the 
virtues of Western democracy, as first proclaimed over a century ago 
by racist congress members and Supreme Court justices.192 Indeed, the 
author of the piece, “Territorial Federalism,” in the Harvard issue 
suggests the use of the Territorial Clause’s plenary power over Puerto 
Rico and the other territories can be justified within the constitutional 
structure as a way to ensure democratic values and rules for “proto-
states,” or territories destined to become states of the union.193 After 
over 125 years of being under plenary congressional colonial rule, the 
suggestion that Puerto Rico is a state-in-waiting is absurd and so 
blindly ignorant that it is offensive. Indeed, despite the rhetorical 
gamesmanship of “Territorial Federalism,” where the author contorts 
legal decisions, history, and logic to justify the colonial venture, the 
author never condemns the colonial venture—though timidly admitting 
its existence.194 

Professor Ponsa-Kraus recently examined Developments in the Law, 
an article published in a 2017 Harvard Law Review issue, and 
concluded that several of these advocates of the repurposing view 
advocate for a new look at the Insular Cases: a way to maintain 
the colonial structure in order “to protect the distinctive cultures of 
the unincorporated territories.”195 Professor Ponsa-Kraus, correctly 
condemning such efforts, observed that these apologists stated that 

191 See, e.g., MONGE, supra note 5, at 44–50. EFRÉN RIVERA RAMOS, THE LEGAL 
CONSTRUCTION OF IDENTITY: THE JUDICIAL AND SOCIAL LEGACY OF AMERICAN 
COLONIALISM IN PUERTO RICO 73–142 (2001); KAL RAUSTIALA, DOES THE 
CONSTITUTION FOLLOW THE FLAG? THE EVOLUTION OF TERRITORIALITY IN AMERICAN 
LAW 72–91 (2009); BARTHOLOMEW H. SPARROW, THE INSULAR CASES AND THE 
EMERGENCE OF AMERICAN EMPIRE 257 (2006); Christina Duffy Ponsa-Kraus, The Insular 
Cases Run Amok: Against Constitutional Exceptionalism in the Territories, 131 YALE L.J. 
2449 (2022); JUAN R. TORRUELLA, THE SUPREME COURT AND PUERTO RICO: THE 
DOCTRINE OF SEPARATE AND UNEQUAL 40–84 (1985).  

192 See Downes v. Bidwell, 182 U.S. 244, 288. The opinion by its own words is 
unquestionably paternalistic and bigoted. 

193 See Developments in the Law, supra note 184, at 1645. 
194 Id. at 1624–25.  
195 Ponsa-Kraus, supra note 191, at 2456.  



2025] Race and Empire: The United States Over Puerto Rico 515

“[w]here the doctrine [of the Insular Cases] once served colonial 
interests in an era of mainland domination of the territories, a 
revisionist argument would see it repurposed today to protect 
indigenous cultures from a procrustean application of the federal 
Constitution.”196  

Another advocate of the repurposing project described the Insular 
Cases as “defensible and perhaps even necessary” to protect culture 
and promote self-government in the U.S. territories.197 Professor 
Stanley Laughlin defined the repurposing project as follows: 

The genius of the [doctrine of the Insular Cases] is that it allows the 
insular areas to be full-fledged parts of the United States but, at the 
same time, recognizes that their cultures are substantially different 
from those of the mainland United States and allows some latitude in 
constitutional interpretation for the purpose of accommodating those 
cultures.198  

In the end, these delusional and pious defenders of the Insular Cases 
and U.S. colonialism, by labeling colonialism as repurposing or some 
other euphemism for colonial subjugation, they are simply apologists 
for empire. They ultimately are selectively principled scholars who 
tacitly frown on empire but essentially support it when it comes to the 
people of color that are the Puerto Rican people and those of other U.S. 
overseas territories.  

The U.S. Supreme Court, for its part, is similarly in support of the 
Insular Cases and thus U.S. colonial rule. Despite the admittedly and 
openly racist proclamations of the Insular Cases, the Court has 
repeatedly upheld the tortured logic of these decisions, despite their 
endorsement of empire and use of bigotry to subjugate conquered 
peoples potentially indefinitely. Relying on the territorial incorporation 
doctrine, the Court has upheld unequal economic treatment of the U.S. 
citizens in Puerto Rico. For instance, in the 1978 case Califano v. 
Torres,199 the Court held that Congress can discriminate against the 
elderly, the blind, and people with disabilities if they are inhabitants of 
Puerto Rico by not providing them financial assistance that they would 
otherwise be eligible for under the Supplemental Security Income (SSI) 

196 Id. at 2457.  
197 Russell Rennie, Note, A Qualified Defense of the Insular Cases, 92 N.Y.U.  L.  REV. 

1683, 1707 (2017). 
198 Stanley K. Laughlin, Jr., Cultural Preservation in Pacific Islands: Still a Good 

Idea—and Constitutional, 27 U. HAW. L. REV. 331, 374 (2005); see also Daniel E. Hall, 
Curfews, Culture, and Custom in American Samoa: An Analytical Map for Applying the 
U.S. Constitution to U.S. Territories, 2 ASIAN-PAC. L. & POL’Y J. 69, 92–97 (2001).  

199 Califano v. Torres, 435 U.S. 1, 2, 5 n.7 (1978). 



516 OREGON LAW REVIEW [Vol. 103, 483 

program of the Social Security Act.200 Similarly, in Harris v. Rosario, 
the Court upheld as constitutional the reimbursement of lower levels of 
AFDC (Aid to Families with Defendant Children) to the people of 
Puerto Rico.201 Resting on Congress’s power under the Territorial 
Clause, the Court, in these decisions, summarily found a rational basis 
for the disparate treatment of the Puerto Rican people, thereby 
justifying Congress’s discriminatory action and colonial rule.  

Further, the Court recently refused to grant certiorari in Fitisemanu 
v. United States202 and effectively upheld the Insular Cases. The
Fitisemanu Court considered whether persons born in United States 
territories are entitled to birthright citizenship under the Fourteenth 
Amendment’s Citizenship Clause, including whether the century-old 
Insular Cases should be overruled.203 By refusing to grant certiorari, 
the Court upheld the status quo, thereby refusing to recognize the 
birthright citizenship available to all stateside U.S. citizens. As a result, 
the Court upheld the validity of the openly racist and imperialist Insular 
Cases.204 

Just two weeks before Fitisemanu, petitioners asked the Court to 
reject the Insular Cases, in U.S. v. Vaello Madero.205 The Vaello 
Madero petitioners requested the Court to apply the equal protection 
component of the Fifth Amendment’s Due Process Clause for the SSI 
benefits to residents of Puerto Rico to the same extent those benefits 
are available to residents of the States.206 The Vaello Madero Court 
answered in the negative and concluded that, because Congress had 
been granted broad oversight of U.S. territories by Article IV of the 
U.S. Constitution, the exclusion of the territories by Congress from 
programs like SSI was accordingly not violative of the Constitution.207 
In doing so, the Court held notions of equal protection do not apply to 

200 Id. at 4–5.  
201 Harris v. Rosario, 446 U.S. 651, 652 (1980). 
202 Fitisemanu v. United States, 1 F.4th 862 (10th Cir. 2021), cert. denied, 143 U.S. 362 

(2022). 
203 Id. 
204 For a general discussion of the U.S. territories and their history, see ARNOLD H. 

LEIBOWITZ, DEFINING STATUS: A COMPREHENSIVE ANALYSIS OF UNITED STATES 
TERRITORIAL RELATIONS (Martinus Nijhoff Publishers 1989) (the first book to address the 
legal issues relating to the U.S. island territorial relations, but sadly utterly failed to raise 
issues of race or how the colonial relationship assisted in the subjugation of people of color 
in these territories).  

205 U.S. v. Vaello Madero, 596 U.S. 159, No. 20–303, slip op. at 1 (U.S. Apr. 21, 2022). 
206 Id.  
207 Id. at 5–6. 



2025] Race and Empire: The United States Over Puerto Rico 517

the residents of Puerto Rico.208 At the same time, the Court upheld the 
Insular Cases and reaffirmed the subordinate status of the U.S. citizen 
residents of Puerto Rico.209 With these decisions, especially when the 
Court refused to even hear arguments on the validity of the Insular 
Cases, the Court embraced colonialism, despite its universal 
condemnation, and in doing so, ushered in the imperialistic era of the 
New Insular Cases.210 

CONCLUSION (AND IT WILL STAY THE SAME) 

The above congressional acts, scholarly opinions, and U.S. Supreme 
Court precedents highlight that U.S. colonialism is alive and well over 
a century after it started in 1898. While not using openly racist 
comments, today’s apologists use terms like culture or repurposing to 
justify maintaining millions in a subordinated, silenced colonial rule. 
The residents of the U.S. territory “enjoy” a second-class citizenship, 
one befitting only colonial subjects. Moreover, the United States has 
created and maintains a fiction of self-rule in which even some Puerto 
Ricans partake: that the territory is autonomous, and that Puerto Ricans 
can decide their fate. As shown in this Article, nothing could be further 
from the truth. This is both the shame and the genius of the American 
Empire.211  

The inevitable question remains: What should be done with Puerto 
Rico? In terms of the future status of Puerto Rico, the three classic 
status options are mentioned above. For the reasons expressed 
throughout this Article and other articles by the authors, the 
Commonwealth option is an unacceptable form of colonial rule. The 
next potential option could be U.S. statehood. Still, considering the 
troubling, racialized history of U.S. control over Puerto Rico, it is 
unlikely that the United States will ever accept Puerto Ricans as equals 
and Puerto Rico as a state of the Union. 

Ultimately, the authors believe that the time has come for Puerto 
Ricans to seek full sovereignty and be in charge of their destiny. It is 
the only dignified option that will grant Puerto Ricans full control over 
their affairs and erase the ugly stain of colonialism from their history. 
Indeed, one could characterize the Commonwealth option as merely 
the maintenance of empire, and U.S. statehood for its part (in the 

208 Id. at 5. 
209 Id. 
210 See, e.g., id.  
211 See ROMÁN, supra note 1. 



518 OREGON LAW REVIEW [Vol. 103, 483 

unlikely event it was ever allowed by the U.S. government) could be 
viewed as simply the culmination of empire—that is, the complete 
annexation  and absorption of the Puerto Rican people and their 
culture.212 Thus, independence is the only viable option consistent with 
both international law principles of self-determination and the U.S. 
constitutional theory of equal membership.213 Admittedly, a real and 
frightening aspect of independence would be the prospect of economic 
strife post-independence and the national security fears associated with 
the creation of the country of Puerto Rico. These dangers may be 
ameliorated by creating international agreements between the United 
States and Puerto Rico post-independence, similar to those enjoyed by 
the United Kingdom’s former colonies.214 Of course, these debates will 
likely continue throughout what is now the second century of U.S. 
colonial rule over Pu