The Property Clause

by Denise Haunani Solomon
The Property Clause

Plantation workers harvesting sugarcane in Hawaii in the 1940s. (AP Photo/Hawaii State Archives)

Head and Liberal Arts Professor
Dept. of Communication Arts & Sciences

“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.” — Article 4, Section 3, Clause 2

The Property Clause has been getting attention in recent months as the current administration contemplates the future of national parks, forests, and monuments. An equally important question raised by the Property Clause is whether constitutional rights extend to territories, or “insular areas,” controlled by the United States. The answer to this question, based on Supreme Court decisions, is that Congress gets to decide which parts of the Constitution apply to which territories.

At present citizenship rights are extended to people born in 13 of the 14 US territories (the exception is American Samoa), but full protection under the Constitution is not guaranteed to these citizens. Historically, annexing territories has functioned to expand or protect the financial and security interests of the US – interests that have sometimes been at odds with conferring constitutional protections to inhabitants of insular areas.

A case in point is the history of my family in Hawaii. My great-grandmother was born in 1902, four years after Hawaii became a territory of the United States and 57 years before Hawaii became a state. She was born the grand-daughter of a Hawaiian kahuna – a wise man, healer, and leader in their community. By the time she was a teenager, my grandmother had two sons and worked for the Kohala Plantation on the big island of Hawaii. She had five more children, while continuing to work in the sugar cane fields of the Halawa Plantation. To make money, she boiled hot water for other members of her plantation camp, about 100 people in total, and hand washed clothes for other families.

My grandmother was part of a large population of Hawaiians and predominantly Asian immigrants who lived the hard life of indentured servants until statehood for Hawaii demanded better treatment of the labor force.

Sometimes the financial and security interests of the United States are at odds with conferring constitutional protections to inhabitants of insular areas.