U.S. Insular Law Considerations on the Origin and Classification of "Aliens"

by Richard W. Hartzell

This chart extrapolates the concept of having "eligibility" to carry some type of US passport back to earlier eras, even though most persons did not carry passports before the 1950's. The special circumstances of (1) trust territories, or (2) Indian reservations in the fifty states may overlap with insular law to some extent, but are not considered. Foreign Territory held by US military forces under belligerent occupation (without any territorial cession) may be said to be under the jurisdiction and administrative control of the USA, but is not insular and hence is not considered here.

[Note 1]: A person who is a dual citizen of his/her home country and the USA would of course be qualified to carry a US passport.

[Note 2]: The terminology of "domestic country" and "island citizen" comes from the ruling in Gonzales v. Williams, 192 U.S. 1 (1904).

[Note 3]: The people of Puerto Rico were collectively naturalized in March 1917.

[Note 4]: The people of Guam were collectively naturalized in August 1950.

[Note 5]: Cuba and Taiwan were both "limbo cessions" with the USA as principal occupying power and qualify as insular areas. US Insular Law applies to Taiwan and Cuba because they are "inside" the principle of cession by conquest which was confirmed by cession by treaty. In DeLima v. Bidwell 182 U.S. 1 (1901), it was held that "Cuba is under the dominion of the United States."

[Note 6]: In the Insular Cases (beginning 1901) the US Supreme Court held that even without any action by the US Congress, "fundamental rights" under the US Constitution apply in all unincorporated territories. Among others, so-called "fundamental rights" include life, liberty, property, and due process of law under the Fifth Amendment. According to the precedent in Kent v. Dulles, 357 U.S. 116 (1958), and subsequent INS interpretations, the right to travel is a part of the "liberty" of which a citizen, or other person owing allegiance to the United States, cannot be deprived without due process of law under the Fifth Amendment. The right to travel also includes the right to obtain a passport. Hence, the Taiwanese are entitled to carry US national non-citizen passports.

[Note 7]: The San Francisco Peace Treaty (SFPT) came into effect in 1952, and in Article 2b Japan renounced the sovereignty of Taiwan. The Taiwan Relations Act (TRA) came into effect in early 1979, and is a domestic law of the United States. However, there is no mandate under either the SFPT or the TRA for the Republic of China's Ministry of Foreign Affairs to issue passports to native Taiwanese persons, in the areas of Formosa and the Pescadores. As defined in INA 101(a)(30), the ROC Ministry of Foreign Affairs cannot be construed as the "competent authority" for issuing passports to these persons. Hence, it can be maintained that under US law the Taiwan governing authorities are counterfeiting "Republic of China passports." As the principal occupying power of the SFPT, it is the United States which is the "competent authority" for issuing ID documentation to native Taiwanese persons under 8 USC 1101 (a)(30).

N/A is used to indicate "Not Applicable."

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