HOW A TERRITORY DIFFERS FROM A STATE
from Statehood for Alaska
by George Sundborg, Sr.
THE TERRITORIAL plan of government was devised for regions under the sovereignty of the United States to which Congress felt itself compelled to allow a measure of self-government, but to which it was unwilling at once to grant full membership in the Union. The status of territory has always been regarded as a sort of governmental adolescence, from which, with increasing population, the area would eventually grow into adult statehood. When a territory has acquired about 60,000 people, it has usually been regarded as of age. Every state west of the Alleghenies, except Texas and California, passed through this stage of development.
COURTS UNCERTAIN WHAT CLAUSE MEANS
Since the whole theory of territorial government was based on the assumption that the period of territorial tutelage would be short, and would be followed by statehood, not too much time or effort was ever expended by Congress in perfecting it. As applied to the continental area, the ill consequences of any imperfections in the territorial system could only be temporary. What is this system, and how well adapted is it to provide government on a more or less permanent basis to such an area as Alaska?
The fundamental law of the land has very little to say on the subject of the relationship of American territories to the Union. The only indication of the intention of the makers of the Constitution is in Article IV, Section 3, which reads: "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." The rest of the instrument seems to postulate, both in spirit and in wording, a group of states and nothing else. Since the time of the annexation of Louisiana in the early 1800's the interpretation of this clause has vexed the nation.
The Supreme Court has answered that the power to govern all the areas not admitted to statehood resides in Congress. The extent of this congressional authority was a subject of contention before the courts all during the last century and is not yet entirely settled. Territories such as Alaska and Hawaii are sometimes classified as "incorporated" territories as distinguished from such "unincorporated" possessions as the Virgin Islands, American Samoa and Guam. The term refers to the fact that territories like Alaska and Hawaii have been incorporated into the Union, that is, brought entirely under the protection of the Constitution. The treaty with Russia providing for annexation of Alaska declared that: The inhabitants of the ceded territory, shall be admitted to the enjoyment of all the right, advantages, and immunities of citizens of the United States; and shall be maintained and protected in the full enjoyment of their liberty, property, and religion."
Of course, the people of Alaska are to this day conspicuously denied one of the rights and advantages which citizens of the United States hold most dear. This is the right, through the ballot to control in some measure the functioning of the national government.
It is obvious, but not often appreciated by those who do not reside in the territories, that American citizens participate in determining the policies of the national federation only through the medium of the states. The President is selected by an electoral college composed of members from each state. The Senate is made up of two members from each state. The House of Representatives is apportioned according to the population of the states.
PEOPLE DENIED MANY BASIC RIGHTS
An amendment to the Constitution must be approved by a two-thirds vote of both houses of Congress - houses chosen by the states - and approved by the legislatures of or conventions in three-fourths of the states. From beginning to end, the reins which guide the progress of the national government lead only from the states and citizens of the states. The territories and possessions are out of it. Apparently it was inconceivable to the founding fathers that Americans anywhere or of any era should exist for long under a form of government in which the benefits of suffrage and representation are denied them.
It is true that Alaska sends a Delegate to Congress. But this representative has no vote. His influence, if any, is personal. It is also true that both of the major political parties grant representation to the territories in their nominating conventions. But this results in only indirect, indefinite power. As for any share in the formal, legal control of the federal government, such as the citizens of the states have, the people of Alaska have no more than the bears in the hills, the salmon in the sea, the trees in the forest or indeed the stones in the field.
Not only are territories inferior to the states in that they exercise no influence over the federal government but also in that the federal government has much more authority over the territories than over the states: first, from the general theory of the federation itself; and, second, from the interpretation which the courts have put upon the constitutional restrictions on Congress.
FINAL AUTHORITY RESTS WITH STATES
It is fundamental in the constitutional theory of the American federation that the states are sovereign in certain fields; that they have certain inherent powers, certain authority which is neither granted nor delegated to them. The federal government, on the other hand, has only the powers specially delegated to it, such as the powers to declare war, to levy taxes, to regulate commerce between the states, and to coin money. All governmental powers not granted to the national government are, according to the Tenth Amendment, reserved "to the states or to the people."
The theory of federal power does not apply to the territories. They are not sovereign. They have no inherent powers. Any authority which they have is delegated to them by Congress. One of the prime tests of sovereignty of an area is its ability to change its form of government. States can do this at will, except only as limited by the federal constitutional provision that they shall have a republican form of government. But the territories have governments handed to them by Congress.
All governmental powers over the territories are in Congress. The Congress allots what authority it wishes to whatever agencies it desires to set up in a territory such as Alaska. Nor are there any limitations upon the legislative powers of Congress, as respects territories, save those imposed upon it by the Constitution, which in this respect are slight indeed. All "those powers reserved to the states" by the Constitution repose, in the case of Alaska, in the federal government. From time to time, and especially in the Organic Act of 1912, Congress has granted certain local and territorial legislative powers to the people of Alaska. This grant of powers is not absolute. Congress may legislate - and does continue to do so - in purely local and territorial matters.
U.S. ALSO EXERTS AUTHORITY LOCALLY
The acts of Congress take precedence over and repeal acts of the Territorial Legislature in conflict therewith. At any time Congress may increase or decrease its grant of powers to the Territorial Legislature. Although some mentally resourceful "constitutional lawyers" have sought to maintain the opposite, it is no doubt true that Congress could entirely withdraw this grant of power. Any law passed by the Territorial Legislature is subject to veto by the Governor of the Territory, a federal official, and laws may be passed over his veto only by a two-thirds vote in each house of the legislature. Any law of the legislature may be rendered void by a specific action of Congress. Otherwise, it is for the courts to decide upon the legality of territorial legislation if and when it is challenged.
The power of the national government over the territories differs from the power of the national government over the states not only as to the establishment of local government but also as to the regulation of the social and personal relations of the people. Over them in the territories Congress has also that power which in our federal plan we have allotted to the states. The chief additional power in dealing with the local affairs of the territories is what is known as "the police power of the states." This is the power to make laws concerning the private affairs of individuals, concerning property, contracts, public safety, public health, public morals, and the general welfare of the community.
As Judge Morrow of the Circuit Court of Appeals for the Ninth Circuit once declared, in a decision respecting Alaska: The United States having rightfully acquired the territories and being the only government which can impose laws upon them has the entire dominion and sovereignty, national and municipal, federal and state… It may legislate in accordance with the special needs of each locality and vary its regulations to meet conditions and circumstances of the people. Whether the subject elsewhere would be a matter of local police regulation, or within state control under some other power, is immaterial to consider.
RIGHTS OF STATE VERSUS ALASKA'S
And so, while congressional acts regulating the speed of automobiles, the making of contracts, or the closing of shops on Sunday within the state of Oregon would be
unconstitutional as invading the functions of the state government, yet the same laws for Alaska would be entirely within the rightful powers of Congress.
As to the rights of individual citizens, however, except for the right to take a hand in controlling national affairs, people in Alaska are not inferior to those of the states. The humblest newborn child in Fairbanks could no more have the plentitude of his privileges of American citizenship taken from him than could the governor of New York. In terms of political rights the differences between Alaska and the State of California are these: Over Alaska, Congress has powers of local regulation, unrestricted by many of the usual curbs, while it has no such power over California; Congress could give to the people of Alaska any type of government which congressmen, in their wisdom, thought appropriate, while the people of California themselves determine their own mode of government, subject only to the constitutional provision that it be republican in form; the people of Alaska can have no share in the control of the federal government, even as respects their own area, while the people of California exercise such control through voting representation in Congress, through choice of the electors who select the President and through their powers of amending the Constitution; for amendments to the Alaska Organic Act Alaskans must depend on the federal government, while the people of California, without reference elsewhere, may change their laws and their state constitution in the manner prescribed in that document; any law of the Alaska Legislature could be amended or abolished by Congress, while the laws of the California Legislature are not subject to national review except by the courts as to their constitutionality; finally, Alaska's chief executive, the Governor, possessing veto power over acts of the Territorial Legislature, is appointed by the President, while the people of California elect their Governor from among their own number.