Resiliency as a Social Movement

On Monday, July 25, 1898, a convoy of over 3,000 U.S. soldiers made landfall in southern

Puerto Rico.1 Invading with the ironic purpose to bring Puerto Rico under the “banner of freedom,”

the United States quickly overtook the island and entered into an armistice with Spain.2 Shortly

thereafter, the United States and Spain finalized the Treaty of Paris, which provided Congress

plenary power to control the “civil rights and political status of the island and its people.”3 With

its new “possession” secured,4 the United States established a relationship with the island that

continually reinforced the violent manner in which it secured the island. Through over one hundred

years of political, legal, and social colonialism, the United States has exerted its imperialist power

to “decide every facet of Puerto Rico’s fate,” including the “rights of and the form of government

for the Puerto Rican people.”5 Through its laws, the United States has expressed two enduring

messages to the Puerto Rican people: 1) “We are here to exploit you” (the exploitative function of

the law); and 2) “We are here to civilize you” (the paternalistic function of the law).

On Wednesday, September 20, 2017, at 6:15 a.m., Hurricane Maria made landfall just

south of Yabucoa Harbor in Puerto Rico.6 As the deluge of rain and wind finally departed the

island a day later, Puerto Ricans came face-to-face with the new reality of their post-Maria home—

1
Chronology of Puerto Rico in the Spanish-American War, LIBRARY OF CONGRESS,
https://www.loc.gov/rr/hispanic/1898/chronpr.html.
2
Id.
3
Ediberto Román, Empire Forgotten: The United States’s Colonization of Puerto Rico, 42 VILL. L. REV. 1119, 1139
(1997) (quoting Treaty of Paris, Dec. 10, 1898, U.S.-Spain, art. IX, T.S. No. 343).
4
Much of the contemporary legal scholarship at the turn of the nineteenth century characterized Puerto Rico as
America’s new “possession.” For example, the Harvard Law Review published a series of articles in 1899 discussing
the future of America’s new “possession.” See Rose Cuison Villazor, Problematizing the Protection of Culture and
the Insular Cases, 131 HARV. L. REV. F. 127, 133 (2018). The Supreme Court used one of those articles, Professor
Abbott Lowell’s The Status of Our New Possessions—A Third View, to create the unincorporated doctrine that justified
the infamous Insular Cases. Downes v. Bidwell, 182 U.S. 244 (1901) (adopting the Professor Lowell’s position in 13
HARV. L. REV. 155 (1899)).
5
Román, supra note 3, at 1140.
6
Robinson Meyer, What’s Happening with the Relief Effort in Puerto Rico?, THE ATLANTIC (Oct. 4, 2017),
https://www.theatlantic.com/science/archive/2017/10/what-happened-in-puerto-rico-a-timeline-of-hurricane-
maria/541956/.
a crippled infrastructure and a hopelessly long road to recovery.7 As stories from the island reached

the mainland, Americans came face-to-face with a revelation of their own—that Puerto Ricans are

*gasp* American citizens too. Whereas a century of colonialism had hidden Puerto Rico from the

spotlight, Hurricane Maria ripped the veil of post-racial America’s innocence and revealed

millions of American citizens left without power, clean water, food, fuel, or other basic necessities.

But in the literal and metaphorical darkness of an island left completely without electrical and

political power, the enduring flame of a resilient Puerto Rican culture continued to burn.

Undeterred by the federal government’s slow recovery mobilization and the president’s callous

tweets and tone-death comments,8 Puerto Ricans took the mantle of recovery upon themselves. In

doing so, they sent a powerful message repudiating colonialism’s expressive functions: “We do

not need you.”9

To fully understand how Puerto Rican resiliency in the aftermath of Hurricane Maria

repudiated the expressive functions of American colonialism, Part I of this Paper discusses the

formation, legitimation, solidification, and perpetuation of the law and the events associated with

each phase. Part II discusses how Puerto Ricans have displayed resiliency in the aftermath of

Hurricane Maria, how their resiliency has repudiated the expressive functions of the law, and how

their resiliency is no new development.10

7
See id.
8
See Dan Merica, Trump Seems Ready to Pull Aid from Puerto Rico. He Took a Different Tone with Texas and
Florida., CNN (5:47 PM, Oct. 12, 2017), https://www.cnn.com/2017/10/12/politics/trump-puerto-rico-texas-florida.
9
“We do not need you” squarely repudiates the paternalistic function of the law. By disclaiming any reliance on the
United States, this message also undermines the United States’ ability to exploit the island. For example, Puerto Ricans
have engineered new economically and environmentally sustainable food systems in the wake of Hurricane Maria. By
creating new food systems, they are reducing dependence on expensive domestic imports.
10
I fully recognize that I am ill-equipped to honor the immeasurable contributions of thousands of past, present, and
future Puerto Rican activists. Nonetheless, I also fully recognize that I would be remiss to treat Puerto Rican
“resiliency” as a new development.
Expressive Function of the Law

Formation: The Ideology of American Colonialism

An ominous mix of ideological ingredients contributed to the United States’ colonization

of Puerto Rico. These ingredients, seemingly operating on different planes, converged to

“otherize” Puerto Ricans and justify their exclusion from American democracy. These ingredients

included (among other things): racism, Social Darwinism, Manifest Destiny, visions of democracy,

and visions of imperialism.

Although the ideology of colonialism is not entirely coherent and different groups’

interactions with the ideology are not easily deciphered, one can still identify the most salient

ingredients of colonialist ideology.11 Three of those most salient ingredients—racism, Social

Darwinism, and Manifest Destiny—interact and reinforce one another so as to create a

construction of the “other.”12 Although disentangling these three ingredients is difficult, one can

largely characterize Manifest Destiny as the inevitable product of racism. The “notion of [white,

Anglo-Saxon] racial superiority” largely fueled the “special calling of the ‘superior Anglo-Saxon

race’ to spread the gospel and practices of civilization throughout the world.”13 If one envisions

racism and Manifest Destiny as a store of explosive dynamite, Social Darwinism, the burgeoning

ideology of the late nineteenth-century, provided the spark that ignited American imperialism.

Social Darwinism posited “survival of the fittest” as an “inescapable law of . . . social and

international life.”14 Social Darwinism complemented racism and Manifest Destiny by inserting a

11
See Efrén Rivera Ramos, The Legal Construction of American Colonialism: The Insular Cases (1901-1922), 65
REV. JUR. U.P.R. 225, 285 (1996).
12
Id. (citing David Healey, DRIVE TO HEGEMONY: THE UNITED STATES IN THE CARIBBEAN 1898-1917 288 (1988)).
13
Id. at 286-87.
14
Id. at 287. Importantly, Charles Darwin’s theory of evolution was not innocently confined to science, as many now
contend. In other words, Social Darwinism “was not merely a distorted application of the renowned English scientist’s
theory to the political field.” In “The Descent of Man”, Darwin found “much truth in the belief that the wonderful
progress of the United States, as well as the character of the people, are the results of natural selection,” and
characterized Americans as “the heir of all the ages, in the foremost files of time.” Id.
conviction that “weak powers must be . . . replaced by a stronger power,” such as the United States

and its “racially-superior” “Anglo-Saxon heritage.”15 The unique mix of racism, Manifest Destiny,

and Social Darwinism produced a conviction that American colonialism would provide much-

needed stability and order to the “weak[er] powers.”16 Ultimately, “this vision of order would be

used repeatedly as a justification for outright intervention in the internal affairs of [Puerto Rico]

and even for the establishment of diverse forms of prolonged political and military control.”17

If racism, Manifest Destiny, and Social Darwinism created the construction of Puerto

Ricans as the “other,” the vision of democracy as a privilege further exacerbated their

“otherization.” Fueling this vision of democracy was the argument that democratic participation

was not intended for American colonies.18 By 1901, rights were no longer (if they ever were)

defined by reference to a higher law—rather, they were defined by the collective will of the worthy

participants in democratic society.19 In other words, “less capable, less enlightened communities,

that through the operation of the inevitable forces of social evolution came to be wards of their

more advanced counterparts, had to content themselves with the ‘blessings’ bestowed upon them

by a liberal Constitution that guarantees the protection of some claims—as defined by the superior

polity—while being denied the right to govern their own destinies.”20 Similar to African

Americans, Native Americans, women, the poor, and so many more throughout American history,

Puerto Ricans were the newest class of “American citizens” relegated to legally-enforced second-

class citizenship.

15
Id.
16
Id. at 287-88.
17
Id. at 288.
18
Id. at 293. This vision of democracy is ironic given that the Constitution was written little over a decade after thirteen
British colonies declared their desire to participate in democracy.
19
See id. at 295.
20
Id.
 This construction of the “other” created the context in which views on imperialism were

cultivated. Two predominant views, both operating with the background belief in the superiority

of Anglo-Saxon culture, sought legitimation through the courts and the political process. After

obtaining its new “possessions,” the United States had to resolve how it planned to deal with them.

One view, which ultimately found legitimation through the Insular Cases, “sanctioned the

realization of the expansionist project through . . . the direct political subordination and control of

overseas territories and peoples that were not considered part of the nation.”21 The other view,

which dedicated itself primarily to paternalism rather than exploitation, believed that the

“blessings” bestowed by the Constitution should extend to the “uncivilized” world.22 Some

contemporary legal scholars advocated abandoning the colonial project to avoid “providing the

alien people of the possessions a basis to claim a right to participate in the government of the

nation.”23 Other scholars advocated abandoning formal colonialism to instead pursue “the

extension of American hegemony through commercial activity.”24

Within this context, politicians and legal scholars alike sought legitimation for their

respective views on imperialism. Importantly, these actors advanced their views from the same set

of background principles. These background principles—racism, Manifest Destiny, Social

Darwinism, and democratic participation as privilege—justified both imperialist and anti-

imperialist viewpoints. Because these viewpoints developed from a consensus regarding the moral

construction of the “other,” the debate surrounding what to do with Puerto Rico was couched as a

political or constitutional debate—the moral debate was already settled. Operating from this well-

settled moral construction of the “other,” the Supreme Court stepped in to clarify the United States’

21
Id. at 296.
22
Id.
23
Id. at 297 (internal quotations omitted).
24
Id. at 296.
political relationship with the island. Whether the Court chose to incorporate the full protections

of the Constitution to the Puerto Rican people or to incorporate only some, the die was already

cast—Puerto Rico was an American colony. All that was left was for the symbolic weight of the

Supreme Court’s voice to legitimate American colonialism. Then, Congress could step in with

plenary power to fill in the details.

Legitimation: The Insular Cases

On December 10, 1898, the United States and Spain signed the Treaty of Paris.25 On

February 6, 1899, the United States Senate approved the treaty, which President William

McKinley then signed into effect.26 After Spain ratified the treaty on March 19, the United States

soon set up a military government to rule the island.27 The military regime quickly won the support

of Puerto Rican elites, who controlled the island’s coffee economy and feared class warfare. With

their support, the United States shifted the “emphasis from the mountain economy of coffee to the

coastal valleys and to the production of sugar.”28 With order and trust restored, the United States

passed the Foraker Act, which replaced the military regime with a civilian government.29 Despite

operating under the veil of democratic government, the civilian government that the Foraker Act

implemented served to only further America’s colonial death grip. The Foraker Act tasked the

President with nominating the island’s governor, members of the local cabinet (who also served

25
LIBRARY OF CONGRESS, supra note 1.
26
Id.
27
Id.
28
Pedro A. Malavet, Puerto Rico: Cultural Nation, American Colony, 6 MICH. J. RACE & L. 1, 24 (2000). The
implications of this shift were largely felt in the middle of the nineteenth century. American colonialism not only set
up, but also exploited the Puerto Rican sugar economy to the advantage of “mega enterprises from the mainland” and
the detriment of the rural poor and landless. Juan R. Torruella, Why Puerto Rico Does Not Need Further
Experimentation with its Future: A Reply to the Notion of “Territorial Federalism”, 131 HARV. L. REV. F. 65, 74
(2018).
29
Román, supra note 3, at 1142.
as the legislature’s upper house), and the Chief Justice and Associate Justices of the Puerto Rico

Supreme Court.30 The Act also applied federal laws automatically to Puerto Rico, despite the island

not having a voting representative in Congress.31

The Foraker Act and its subsequent enforcement formed the political context that the

Supreme Court would step in to legitimate. For example, when local frustration with colonial

government under the Foraker Act reached a boiling point in 1909, the lower house of locally-

elected representatives, the House of Delegates, blocked a federal appropriations bill for the

island.32 Although the Foraker Act provided the House of Delegates with the ability to block such

legislation, President William Taft quickly stepped in and encouraged Congress to use its plenary

power to strip the House of Delegates’ power.33 President Taft was no stranger to colonial rule—

he had prior experience as a colonial governor in the Philippines, where he repressed an

insurrection against American occupation.34 He responded to the House of Delegates with similar

force, criticizing Puerto Ricans for acting as should be “expected of people with such little

education.”35 He also lamented that the United States “had gone too far in extending political rights

for [the Puerto Ricans’] own good . . . who had shown too much irresponsibility in the enjoyment

of this right.”36 Soon after, Congress passed the Olmstead Amendment to the Foraker Act,

stripping the House of Delegates of the power to block appropriations. Unfortunately, matters only

worsened for the island. And President Taft never forgot.37

30
Malavet, supra note 28, at 24.
31
Torruella, supra note 28, at 70.
32
Id. at 71-72.
33
Id. at 72.
34
Id.
35
Id. (quoting William Howard Taft, President, Message to Congress (May 10, 1909)).
36
Id. at 72-73.
37
Balzac v. Porto Rico, 58 U.S. 298 (1922) (writing for the Court, Taft reaffirmed the “unincorporated doctrine” of
the previous Insular Cases); see also Torruella, supra note 28, at 73.
 Before the passage of the Foraker Act, the United States Tariff Act of 1897 (“Dingley Act”)

governed the imposition of additional tariffs on imports from “foreign” countries.38 In De Lima v.

Bidwell, the Court asked whether Puerto Rico was a “foreign” country within the meaning of the

Dingley Act, and thus whether the Port of New York could extract duties from Puerto Rican sugar

imports.39 The Court held that Puerto Rico was not a “foreign” country within the meaning of the

Dingley Act—rather, the Court held that Puerto Rico was a U.S. territory by virtue of cession and

possession.40 After the Court affirmed the same reasoning in Goetze v. United States and Grossman

v. United States,41 the Court decided Dooley v. United States, which raised the issue of whether

the pre-Foraker Act military regime instituted in Puerto Rico legally exacted duties from domestic

importers.42 In Dooley, the Court held that although pre-treaty exactions were legal under the

President’s war powers,43 post-treaty exactions were illegal because Puerto Rico had ceased to be

a foreign country.44 In Armstrong v. United States, the Court applied its holding in Dooley to duties

exacted on British imports by the Port of San Juan.45

After the passage of the Foraker Act, the Court again considered a challenge to duties

exacted upon imports from Puerto Rico into the United States. 46 The Court considered the

constitutionality of the provision of the Foraker Act which created the duty on Puerto Rican

38
De Lima v. Bidwell, 182 U.S. 1, 180 (1901).
39
See id.
40
See id.
41
See Goetze v. United States, 182 U.S. 221 (1901); Grossman v. United States, 182 U.S. 221 (1901).
42
See Dooley v. United States, 182 U.S. 222 (1901).
43
See id. at 231.
44
Id. at 235-36 (“An unlimited power on the part of the Commander in Chief to exact duties upon imports from the
states might have placed Porto Rico in a most embarrassing situation. . . . If her exports, upon arriving there, were still
subject to the same duties as merchandise arriving from other foreign countries, while her imports from the United
States were subjected to duties prescribed by the Commander in Chief, she would be placed in a position of practical
isolation, which could not fail to be disastrous to the business and finances of an island. It had no manufactures or
markets of its own, and was dependent upon the markets of other countries for the sale of her productions of coffee,
sugar, and tobacco.”).
45
See Armstrong v. United States, 182 U.S. 243 (1901).
46
See Downes v. Bidwell, 182 U.S. 244 (1901); see Ramos, supra note 11, at 245.
imports.47 The Court upheld the constitutionality of the duty based upon its reading of the

Constitution’s Uniformity and Territorial Clauses. Justice Brown, the same justice who wrote the

Court’s opinion in De Lima holding that Puerto Rico was not a “foreign” country, authored the

Court’s opinion. In it, the Court concluded that the Uniformity Clause did not apply to Puerto Rico

because Puerto Rico is a territory of the United States, but not necessary a part of the United

States.48 In other words, Puerto Rico is a possession of the United States, but neither foreign nor

domestic. In his concurring opinion that would later become the Court’s position, Justice White

laid out the infamous “incorporation” doctrine.49 Although he agreed with the majority that

Congress possessed plenary power over the island,50 he focused on the justification for that power.

Relying on international law, the Constitution, and analogies to the Northwest Territory, Justice

White introduced the doctrine of “territorial incorporation,” which allowed Congress to determine

the status of territories and the extent to which various provisions of the Constitution apply.51 Thus,

incorporation “was not the automatic legal result of the acquisition of a territory, but a political

decision to be taken by the ‘people’ of the United States, represented in Congress.”52

De Lima, Goetze, Grossman, Dooley, Armstrong, Downes, and Huss (holding that Puerto

Rico was a “domestic territory”)53 were all decided on May 27, 1901.54 In Dooley II, decided on

December 2, 1901, the Court upheld the constitutionality of a Foraker Act provision that taxed

imports from the United States into Puerto Rico.55 Similar to the holding in De Lima, the Court

47
Ramos, supra note 11, at 245-46.
48
See Downes, 182 U.S. at 287 (“[W]hile in an international sense Porto Rico was not a foreign country, since it was
subject to the sovereignty of and was owned by the United States, it was foreign to the United States in a domestic
sense, because the island had not been incorporated into the United States, but was merely appurtenant thereto as a
possession.” Id. at 341-42 (White, J., concurring)).
49
Ramos, supra note 11, at 247.
50
See id. (citing Downes, 182 U.S. at 289-90).
51
Román, supra note 3, at 1144.
52
Ramos, supra note 11, at 249.
53
Huus v. New York and Porto Rico Steamship Company, 182 U.S. 392 (1901).
54
Ramos, supra note 11, at 242.
55
See Dooley v. United States, 183 U.S. 151 (1901).
held that Puerto Rico was not a foreign country.56 However, the Court found that Puerto Rico’s

domestic status did not contradict the Uniformity Clause and thus Congress could exact duties on

imports that it did not uniformly exact in other mainland ports.57 In his majority opinion, Justice

Brown attempted to reconcile Puerto Rico’s domestic status and the Uniformity Clause by

referring to Congress’s “full and paramount” power to legislate “for a territory in the condition of

Porto Rico” as opposed to Congress’s “incidental” power with respect to the states.58 The same

day as it released its opinion in Dooley II, the Court also released its opinion in Fourteen Diamond

Rings, in which it held that imports arriving from the Philippines (another American colony

obtained in the Treaty of Paris) were not imports from a “foreign” country.59

The Court’s web of contradictions could use some clarification. In all but one case, the

Court found that a territory was not a foreign country; rather, each time it found that a territory

was “domestic” in nature. However, in Downes v. Bidwell, the Court splintered over how to

classify a territory that was “domestic” in nature. The majority of the Court agreed that Congress

possesses plenary power over territories, and only certain fundamental rights guaranteed by the

Constitution limit that power. Justice White’s concurrence took the majority’s rationale one step

further—Congress had the ability to decide whether a territory was incorporated (fit to become a

state and thus subject to the full protections of the Constitution) or unincorporated (unfit to become

a state and thus subject to Congress’s plenary power). The development of the Court’s early

reasoning is confused and grounded largely in instrumentalism.60 For example, Justice Brown

(writing for the majority in De Lima), exhaustively outlined the status of previous American

56
See id. at 154-55.
57
See id. at 157.
58
Id.
59
See Fourteen Diamond Rings v. United States, 183 U.S. 176 (1901).
60
See Ramos, supra note 11, at 272-73 (“By pragmatic instrumentalism, I refer to a mode of reasoning predicated on
the proposition that law, laws, and the legal process serve identifiable goals, purposes, and policies and that the
adjudicator must take into consideration the social and political consequences of his or her decision.”).
territories to justify his conclusion that Puerto Rico was not a foreign country.61 In dissent, Justice

McKenna adopted an alarmist, as opposed to a formalist, approach.62 Rather than relying on

precedent, Justice McKenna lamented how the Court’s decision prevented the United States from

fully stepping into its role as a global power.63 To him, the Constitution was “to be viewed as an

instrument, rather than a limitation, of power for the nation.”64

Perhaps impacted by Justice McKenna’s dissent, Justice Brown adopted more

instrumentalist reasoning in Dooley I and Downes. For example, in Dooley I, he warned that a

contrary ruling would place Puerto Rico “in a position of practical isolation, which could not fail

to be disastrous to the business and finances of an island.”65 Meanwhile, in Downes, Justice Brown

emphasized the practical “difficulties” associated with extending full constitutional protection to

Puerto Rico:

“It is obvious that in the annexation of outlying and distant possessions grave

questions will arise from differences of race, habits, laws and customs of the people,

and from differences of soil, climate and production, which may require action on

the part of Congress that would be quite unnecessary in the annexation of

contiguous territory inhabited only by people of the same race, or by scattered

bodies of native Indians.”66

Thus, the early body of decisions regarding Puerto Rico’s status was “decidedly, even explicitly,

instrumental in tone.”67 Importantly, the Court’s rationale began to shift after the initial set of

61
See id. at 273-74.
62
See id. at 274.
63
See id.
64
Id.
65
Dooley v. United States, 182 U.S. 222, 236 (1901).
66
Downes v. Bidwell, 182 U.S. 244, 282 (1901).
67
Ramos, supra note 11, at 279. Unsurprisingly, the government used the instrumentalist rationale in its oral argument
before the Court to justify Congress’s plenary power:
Insular Cases.68 After 1901, the Court reverted back to formalist rationales when deciding

territorial cases, relying on the prior instrumentalist holdings as precedent. In this way, the Court

began the the process of solidification.

Solidification: Incorporating Un-incorporation

After justifying American colonialism in Puerto Rico and elsewhere, the Court began to

clarify and solidify in what sense Puerto Rico and other territories were “domestic.” In Hawaii v.

Mankichi, the Court asked whether the Constitution required that the territory of Hawaii provide

an indictment by grand jury and a verdict by unanimous petty jury. 69 Although Congress had

provided for Hawaii’s formal incorporation on June 14, 1900, the indictment had already been

obtained before incorporation.70 In deciding the case, the Court splintered in much the same way

as it did in Downes. Justice Brown, delivering the opinion of the Court, held that Hawaii’s

annexation did not automatically extend the constitutional protections for grand jury indictments

and unanimous verdicts to Hawaii.71 Justice White, joined by Justice McKenna in concurrence,

reiterated the principles of incorporation. To him, the Constitution did not fully extend protection

because Congress had not chosen to fully incorporate Hawaii until 1900.72

“Is the Constitution a stumbling block, or a trap, caught in which we shall excite the pity of our
friends and the derision of our foes? I refuse to believe so. The Constitution is no mere declaration
of denials. It created a nation. . .when it conferred power, it took care not to cripple action. It still
remains the most perfect instrument ever struck off at a given time by the brain and purpose of man,
under which we are armed for every emergency and able to cope with every condition.”
Id. (quoting De Lima v. Bidwell, 182 U.S. 1, 173-74 (1901)).
68
See id.
69
See 190 U.S. 197, 211 (1903).
70
Id. at 210-11.
71
See id. at 217-18.
72
Id. at 219 (“By the resolution the islands were annexed, not absolutely, but merely ‘as a part of the territory of the
United States,’ and were simply declared to be subject to its sovereignty. The minutest examination of the resolution
fails to disclose any provision declaring that the islands are incorporated and made a part of the United States, or
endowing them with the rights which would arise from such relation.”) (White, J., concurring).
 A year later in Dorr v. United States, the Court considered a similar situation to that of

Mankicki—whether the constitutional right to a trial by jury extended to the Philippines without

prior Congressional legislation.73 For the first time, the Court, in an opinion authored by Justice

Day, adopted Justice White’s incorporation doctrine. Justice Day opened with a strong statement

affirming the first set of Insular Cases and solidifying Congress’s plenary power over newly

acquired territories.74 Then, he explained the roots of incorporation doctrine using the Constitution

and prior precedent: “That the United States may have territory, which is not incorporated into the

United States as a body politic, we think was recognized by the framers of the Constitution in

enacting the article already considered, giving power over the territories, and is sanctioned by the

opinions of the justices concurring in the judgment in Downes v. Bidwell.”75 Although three

justices in concurrence declined to adopt the incorporation doctrine, Justice Day’s opinion still

obtained five votes.76 The incorporation doctrine was now “law.”

With the “law” now at his back, Justice White wrote the Court’s majority opinion in the

1905 case Rassmussen v. United States.77 The case raised the issues of: 1) whether Congress could

decline to extend the constitutional right to a common-law jury to an incorporated territory;78 and

2) whether the territory of Alaska was an incorporated territory.79 First, the Court held that

Congress could not abrogate the constitutional rights that extend to incorporated territories.80 Then

the Court held that Alaska was incorporated into the United States by the treaty under which it was

73
See Dorr v. United States, 195 U.S. 138 (1904).
74
Id. at 139.
75
Id. at 142-43.
76
Ramos, supra note 11, at 257.
77
197 U.S. 516 (1905).
78
See id. at 520-21.
79
See id. at 521.
80
See id. at 520-21.
acquired.81 Ironically, all the justices, despite their differing rationales, agreed that the

constitutional right to a common-law jury extended to Alaska.

“Of course, there were other ironies: the fate of the Caribbean and Pacific territories

(with the exception of Hawaii), at least as far as the judicial sanction of colonialism

was concerned, was consummated in the very case which clearly demonstrated one

of the fundamental reasons for the differential treatment. After all, Alaska was

sparsely populated and subject to control by white American settlers, conditions

which were perceived to guarantee a relatively easy governance and

assimilation.”82

Perhaps foreshadowing the conflict that the Court would address seventeen years later in Balzac

v. Porto Rico, the Court listed factors for assessing whether a territory was incorporated: “: (a) the

intention of Congress as expressed in the treaties of acquisition; (b) the character of the rights

conferred by the treaty; and (c) the nature of the legislation adopted by Congress concerning the

territory (for example, the extension of laws relating to internal revenue taxation, customs,

commerce and navigation, etc.).”83 Another factor that the Court considered was whether a

territory was organized, or not.84

In Kopel v. Bingham, the Court asked whether Puerto Rico was an organized territory,

ultimately concluding that the Foraker Act completely organized Puerto Rico.85 In so holding, the

Court clarified that an organized territory meant: “A portion of the country not included within the

81
See id. at 525 (“It follows, then, from the text of the treaty by which Alaska was acquired, from the action of
Congress thereunder, and the reiterated decisions of this court, that the proposition that Alaska is not incorporated into
and a part of the United States is devoid of merit, and therefore the doctrine settled as to unincorporated territory is
inapposite and lends no support to the contention that Congress in legislating for Alaska had authority to violate the
express commands of the 6th Amendment.”).
82
Ramos, supra note 11, at 258.
83
Id.
84
See id.
85
See Kopel v. Bingham, 211 U.S. 468, 476 (1909).
limits of any State, and not yet admitted as a State into the Union, but organized under the laws

with a separate legislature under a territorial governor and other officers appointed by the President

of the United States.”86 Emerging from Kopel was a territorial doctrine operating on two planes:

according to the will of Congress, territories were either incorporated or unincorporated; organized

or unorganized: “A territory could be unorganized, yet incorporated. In fact that had been the case

of Alaska for some time, according to the Rasmussen case. By the same token, a territory could be

fully organized, yet unincorporated. That, in the Court's opinion, was the situation of Puerto

Rico.”87

Following Kopel, which was decided in 1909, the Court remained silent as to the status of

Puerto Rico. The solidification of the incorporation doctrine had seemed to settle the island’s legal

fate. Then, in 1917, the “Foraker experiment” came to an abrupt end. Concerned with protecting

the newly-built Panama Canal and converting “the Caribbean Sea into an American lake,” and

pressured by a burgeoning Puerto Rican independence movement, Congress enacted the Jones Act

of 1917.88 Although the Act did not fully abolish the colonial government that the Foraker Act

imposed,89 it did provide U.S. citizenship to Puerto Ricans and add a locally-elected upper house

to the Puerto Rican legislature.90 Of course, Congress reiterated in the Act that it still possessed

plenary power over the island.91 By granting citizenship and adding an upper house, the United

States “half-heartedly denounce[d]” its colonization of Puerto Rico.92 Yet, by maintaining most of

86
Id. at 475 (internal citation omitted).
87
Ramos, supra note 11, at 261. The organized, yet unincorporated island “belonged to, but was not a part of the
United States; Puerto Ricans were not citizens of the United States but were not aliens either. At the same time outside
and within the Constitution, they could only claim the protection of some but not all the rights that the American legal
system formally sanctioned.” Id. at 264.
88
Torruella, supra note 28, at 73.
89
Román, supra note 3, at 1145-46.
90
Torruella, supra note 28, at 73.
91
See Román, supra note 3, at 1146-47.
92
Id. at 1147 (internal citations omitted).
the Foraker Act framework, the United States continued to benefit from the privileges of the

colonialism that it partially denounced through the Jones Act.93 Through half-hearted

denunciations like that in the Jones Act, “the United States has been able to expand its sphere of

political, economic and military influence through direct and indirect annexation of other lands,

while at the same time denouncing imperialism elsewhere and remaining comfortable with its

conscience.”94

For example, the United States expanded its economic influence over Puerto Rico through

the passage of the Second Jones Act, or the Merchant Marine Act of 1920. The Act “allows seamen

to seek tort damages from employers and imposes onerous restrictions on domestic maritime

trade.”95 The Act has four “basic requirements for a vessel engaged in coastwise trade: (1) that it

be owned by Americans, (2) crewed by Americans, (3) built in America, and (4) repaired in

America, unless the carrier is willing to pay [a] tariff penalty.”96 Due to higher operational and

ship-building costs in the United States and the prohibitive cost of investing in Jones Act-approved

vessels, the Act severely constricted (and still constricts) the ability of Puerto Rico to compete in

the international market.97

Nonetheless, the combination of Kopel (declaring that Puerto Rico is an organized

territory) and the Jones Act (granting U.S. citizenship to Puerto Ricans) left the island’s

unincorporated status on shaky ground. Given the factors Justice White laid out in Rassmussen,

the question of Puerto Rico’s incorporation was no longer clear-cut. Unfortunately, just when

Puerto Rico’s colonial status seemed most vulnerable, former-President and now-Chief Justice

93
See id. (internal citations omitted).
94
Id. at 1147-48.
95
Marie Olga Luis Rivera, Hard to Sea: Puerto Rico’s Future Under the Jones Act, 17 LOY. MAR. L.J. 63, 70 (2018).
96
Id. at 71.
97
See id. at 85-99.
William Taft re-entered the scene. Authoring the majority opinion in Balzac v. Porto Rico, Chief

Justice Taft slammed the door on the possibility of Puerto Rican incorporation.98 The Court

reaffirmed Justice White’s concurring opinion in Downes v. Bidwell, holding that Congress did

not explicitly intend to incorporate Puerto Rico and thus the right to a trial by jury did not

automatically extend to the island. Pinned in a corner by the factors that Justice White laid out in

Rassumussen (which seemed to account for an implicit intent to incorporate), the Court explained:

“We need not dwell on [ ] consideration[s] which require[ ] us not lightly to infer,

from acts thus easily explained on other grounds, an intention to incorporate in the

Union these distant ocean communities of a different origin and language from

those of our continental people. Incorporation has always been a step, and an

important one, leading to statehood. Without, in the slightest degree, intimating an

opinion as to the wisdom of such a policy, for that is not our province, it is

reasonable to assume that, when such a step is taken, it will be begun and taken by

Congress deliberately, and with a clear declaration of purpose, and not left a matter

of mere inference or construction.”99

In distinguishing Rassumussen, the Court emphasized that Alaska was a “very different case”

because “it was an enormous territory, very sparsely settled and offering opportunity for

immigration and settlement by American citizens.”100 In other words, “it involved none of the

difficulties which incorporation of the Philippines and Porto Rico presents.”101 The Court made “a

clear assumption that the Puerto Rican United states citizens are not the ‘American citizens’ who

98
See 258 U.S. 298 (1922).
99
Id. at 311.
100
Id. at 309.
101
Id.
could re-settle an ‘American’ state.”102 Once again, the Court legitimated and solidified the long-

standing construction of Puerto Ricans as “others.”103

Accordingly, the Court found that the right to a jury trial did not automatically apply to the

unincorporated island.104 Perhaps suffering from cognitive dissonance given the ineptitude of

American juries to protect black and brown bodies from false imprisonment or unfair punishment,

Chief Justice Taft remarked: “The jury system needs citizens trained to the exercise of the

reponsibilities [sic] of jurors. . . . The jury system postulates a conscious duty of participation in

the machinery of justice which it is hard for people not brought up in fundamentally popular

government at once to acquire.”105 Seen through new lenses, Balzac is really just a case of statutory

construction: when Congress conferred citizenship to Puerto Ricans, it really meant to confer

second-class citizenship. Accordingly, Congress “creat[ed] a distinction between the rights of

United States citizens living in Puerto Rico and United States citizens living in ‘the United States

proper.’”106

Perpetuation: Commonwealth and Collapse

From 1922 until 1950, the United States government was relative silent regarding Puerto Rico’s

status.107 That silence had two effects: 1) maintaining the moral, political, and legal status quo in

the United States’ relationship with the island; 2) allowing private business interests to fill the

power vacuum. Whereas prior to 1897 the island relied on coffee as its primary crop, mainland

102
Malavet, supra note 28, at 29.
103
See id.; infra Part I, Section I (Formation).
104
See id. at 310.
105
Id.
106
Malavet, supra note 28, at 29 (quoting Balzac, 258 U.S. at 311).
107
At least Congress finally learned the island’s name. In 1932, Congress changed the mistaken “Porto Rico” to
“Puerto Rico.” Id. at 31 (citing Act of May 17, 1932, ch. 190, 47 Stat. 158).
“mega-enterprises” soon converted the island’s economy into “one huge sugar plantation.” 108 By

1922, the vast majority of the island’s arable land was owned by corporate interests, making the

island largely dependent on one crop.109 While these “mega-enterprises” reaped dividends as high

as 115% on investment, little wealth actually remained on the island. Instead, Puerto Rico

floundered below the poverty line and had an annual per capita income one-fifth that of the

mainland as late as 1930.110 Although health, sanitation, and education continued to improve,111

Puerto Rico ultimately remained a subordinated colony of the United States. Through commercial

exploitation and the passage of Second Jones Act, the United States essentially forced the island

to become one of its top customers.112 Further, nearly all Puerto Rican exports flowed into U.S.

ports.113

The Great Depression served to only worsen Puerto Rico’s dire economic circumstances.

As the island’s per capita income shrunk and the rural population flooded into the cities, the

island’s government had few resources to address the crisis. The federal government offered

none.114 One contemporary observer remarked, “[T]o see [this] on American territory, among

people whom the United States has governed since 1898, in a region for which our federal

responsibility has been complete for 43 years, is a paralyzing jolt to anyone who believes in

American standards of progress and civilization.”115 The United States’ interests in World War II

brought much-needed relief to the island. As part of the New Deal and a foreign policy interest in

protecting the “southern flank of the United States and approaches to the Panama Canal,” the

108
Juan R. Torruella, Outstanding Constitutional and International Law Issues Raised by the United States-Puerto
Rico Relationship, 100 MINN. L. REV. HEADNOTES 79, 89 (2016).
109
See id.
110
Torruella, supra note 28, at 74-75.
111
See id. at 75.
112
See id.
113
Id.
114
This sounds eerily familiar to the federal government’s response to Hurricane Maria.
115
Torruella, supra note 108, at 90-91.
federal government implemented programs addressing unemployment and poverty.116 Despite the

short-term benefits of reducing unemployment, World War II prompted the United States to

convert 14% of Puerto Rico’s total area into military land. The conversion resulted in the

“deleterious long-range effect of causing environmental, ecological, and health damage, especially

in the outlying islands of Vieques and Culebra—damage which to this day has yet to be corrected.”

After World War II, the creation of the United Nations sparked an increasingly collective,

anti-colonial international consciousness. This anti-colonial consciousness prompted the United

States to release its Atlantic Charter, endorsing self-determination principles.117 In response, the

Puerto Rican legislature petitioned Congress to eliminate “the colonial system of government . . .

totally and definitely.”118 Shortly thereafter, in 1947, Congress granted Puerto Rico the right to

elect its own governor.119 It then delegated the power to select executive officials, originally vested

in the President, to the governor.120 Still facing internal (from the island) and external (from the

United Nations) pressures, Congress passed Public Law 600, which gave the island the right to

determine its own form of government.121 During the ensuing Constitutional Convention, Puerto

Rico declared that their new constitution eliminated “the last vestiges of colonialism.”122

On July 3, 1952, Congress approved the new Puerto Rican Constitution.123 However,

Congress incorporated amendments that stripped the Constitution of a human rights declaration

and mandated a provision requiring Congressional approval for any proposed amendments.124 On

116
Id. at 92;
117
See Román, supra note 3, at 1151.
118
Id. (quoting Autonomy Is Asked For in Puerto Rico Vote, N.Y. TIMES (Feb. 11, 1943).
119
Id. at 1152.
120
Id.
121
Act of July 3, 1950, ch. 446, 64 Stat. 319 (1950) (“Fully recognizing the principle of government by consent, this
act is now adopted in the nature of a compact so that the people of Puerto Rico may organize a government pursuant
to a constitution of their own adoption.”).
122
Malavet, supra note 28, at 32 (internal quotations omitted).
123
Public Law 447, July 3, 1952, ch. 567, 66 Stat. 327.
124
Malavet, supra note 28, at 33-34.
July 25, 1952, the Constitutional Convention, led by Governor Muñoz-Marin, ratified the new

Constitution.125 Armed with its new “compact,” the United States declared itself exempt from

Article 73 of the United Nations Charter, which required governments to report on their non-self-

governing territories.126 In an attempt to strengthen its position, United States representatives to

the United Nations intimated that “a compact . . . is far stronger than a treaty. A treaty can be

denounced by either side, whereas a compact cannot be denounced by either party unless it has the

permission of the other.”127 Many countries harbored considerable doubt regarding the United

States’ position—nonetheless, the General Assembly narrowly approved the exemption by a vote

of twenty-six to sixteen (with eighteen abstentions).128 The exemption did not shield the United

States from criticism within the international community. The United States’ treatment of Puerto

Rico has consistently been the target of the United Nations’ Decolonization Committee.129

Despite the fantasy of a new legal regime, the United States quickly revealed its

disingenuity.130 Similar to the context of Balzac, the Supreme Court would perform judicial jiu-

jitsu to conform Puerto Rico’s new status to prior precedent establishing the island’s

unincorporated status. In Califano v. Torres,131 Torres v. Puerto Rico,132 and Harris v. Rosario,133

the Court reaffirmed that, notwithstanding the island’s new constitution, Puerto Rico was still an

unincorporated territory subject to Congress’s plenary power. Califano allowed Congress to

exclude Puerto Ricans from Supplemental Security Income, Torres reiterated that Congress may

125
Ironically, the Constitution was ratified on the same day that the United States initially invaded Puerto Rico 54
years earlier. Id. at 34.
126
Id. at 35-36.
127
Id. at 36 (internal citation omitted).
128
Torruella, supra note 28, at 87-88.
129
See Román, supra note 3, at 1158-1160.
130
In 1996, Congress admitted that the United States misrepresented its relationship with Puerto Rico to the United
Nations. Id. at 1160-61.
131
435 U.S. 1 (1978).
132
442 U.S. 465 (1979).
133
448 U.S. 651 (1980).
withhold constitutional guarantees from Puerto Ricans, and Harris affirmed Congress’s ability to

assign Puerto Rico a lower reimbursement level for the Aid to Families with Dependent Children

program.134

As recently as 2016, the Supreme Court has continued to perpetuate Puerto Rico’s

subordinated political status. In Puerto Rico v. Sánchez Valle,135 the Court noted that “the

Commonwealth and the United States are not separate sovereigns,”136 and thus the “ultimate

source of prosecutorial power remains with the U.S. Congress.”137 In Puerto Rico v. Franklin

California Tax-Free Trust,138 the Court held that Puerto Rico could not access Chapter 9 municipal

bankruptcy protection because it was not a “state” within the chapter’s meaning of “state.”139

However, the Court also invalidated Puerto Rico’s Recovery Act because it found that Chapter 9

pre-empted Puerto Rico’s program.140 Straining credulity, the Court found preemption was

necessary since Puerto Rico is a “state” for non-municipality Chapter 9 bankruptcy purposes.141

Seemingly inventing a new canon of statutory construction, the Court held that Puerto Rico was a

“state” for some Chapter 9 purposes, but not a “state” for other Chapter 9 purposes. In response to

the Court’s decision, Congress enacted its latest experiment—the Puerto Rico Oversight,

Management, and Economic Stability Act (PROMESA).142

Puerto Rico’s current debt crisis, largely caused by poor Congressional decision-making

and commercial exploitation,143 precipitated a return to the Foraker Act and its colonial

134
See Malavet, supra note 28, at 37-38.
135
136 S. Ct. 1863 (2016).
136
Id. at 1876.
137
Id. at 1875.
138
136 S. Ct. 1938 (2016).
139
Id. at 1945-46.
140
See id.
141
Id.
142
Pub. L. No. 114-187, 130 Stat. 549 (2016).
143
Frankly, I could write a thesis on how many poor decisions Congress has made in leading to the current debt crisis.
From IRS Code amendments to Medicaid reimbursement levels, Congress has continually reaffirmed its plenary
power. Unfortunately, it has continually abused it.
government. The Act establishes the Financial Oversight and Management Board to administer

the Act.144 The Board, composed of seven Presidential appointments, holds final authority over

the governor’s fiscal plans, and may establish policies regarding government contracts.145 The Act

also creates a special bankruptcy process to fill the void left by the Court’s decision in Franklin

California.146 The Act authorizes the Board to serve as a de facto trustee of Puerto Rico’s

bankruptcy process.147 In effect, the Act reaffirms Congress’s plenary authority over the island by

vesting that authority in a politically-unaccountable oversight board. As the coup de grâce, after

Hurricane Maria, Congress passed the Tax Cuts and Jobs Act,148 imposing a 12.5% tax on income

generated from foreign corporations’ intellectual property holdings.149 The Code defines Puerto

Rico as “foreign,” thus disincentivizing corporations from moving to or staying on the island. 150

A common thread runs through this brief summary of the United States’ colonial

relationship with Puerto Rico:151 From first contact, the United States has exerted its power over

the Puerto Rican people. In doing so, it has exploited Puerto Rican resources and labor, and

promulgated and reinforced narratives of Puerto Rican dependence. These expressions of power—

exploitation and paternalism—have since been codified by Congress and the courts. This process

of the law’s formation, legitimation, solidification, and perpetuation demonstrates the essence of

colonialism—a power dynamic established at first contact that the law subsequently codifies and

reinforces.

144
Torruella, supra note 28, at 93.
145
Id. at 94.
146
Id. at 95.
147
See id. at 93-97.
148
Pub. L. No. 115-97, 131 Stat. 2054 (2017).
149
Torruella, supra note 28, at 97.
150
Id.
151
To reiterate, this is a brief account. Much more could be said regarding the United States’ treatment of Puerto Rico.
 We must understand social movements through this frame of colonialism. Without

understanding the power dynamic established at first contact and how the law codifies that power

dynamic, we lack the tools to repudiate the expressive functions of the law. But, when we grow to

understand a historically-rooted understanding of the process of colonialism, we can better serve

as allies and advocates in repudiating the expression of the law, not just its letter. In many ways,

Hurricane Maria has exposed the colonial letter of the law. Many Americans now have a small

glimpse into the United States’ legal treatment of the island.152 Yet, through that small glimpse,

they do not and cannot possess a deeper understanding of what that legal treatment is founded

upon. The foundation of a law is not what the law actually says. Rather, the foundation of a law is

the power dynamic that the law expresses. In other words, the law does not create the expression.

The expression creates the law.

True ally-ship requires a person to not only understand the facial operation of the law, but

also requires a deeper understanding of the power dynamic that the law expresses. Thus, we cannot

content ourselves with a cursory understanding of Puerto Rico’s colonial status. That

understanding is the start of ally-ship, not the end. We must take it upon ourselves to understand

the exploitative and paternalist power dynamic that the law codifies. Only then can we escape

“drive-by ally-ship” and embrace the humility of “community lawyering” that Betty Hung so

eloquently describes. Humble lawyering also dictates that an ally not engage a community with

false assumptions and preconceptions. Given the history outlined in this Paper, one might be

tempted to believe that Puerto Ricans have no agency in their struggle. Not so in the least.

Resiliency is not a new trait that Puerto Ricans somehow just discovered. Instead, Hurricane Maria

simply revealed the fullness of Puerto Rican resiliency. The hurricane did not create the flame.

152
For example, many now know that Puerto Ricans are American citizens, yet lack the right to vote in the presidential
election.
Rather, the hurricane called attention to an enduring flame that embodies an undying activism and

cultural strength. This enduring flame, now on full display for the United States and the world to

see, squarely repudiates the exploitative and paternalistic foundations of un-incorporation. Puerto

Ricans bear the responsibility of carrying that flame. I, as an ally, can never fully carry that flame.

I do not possess the lived experience to do so. But I have a voice, and with that voice, I want to

call attention to the flame and the dark injustice it illuminates.

Resiliency as a Social Movement

A vital starting point for understanding Puerto Ricans’ powerful rejection of colonialism

is recognizing that Puerto Rican history predates American colonialism (and Spanish colonialism,

for that matter).

“When the Americans got to the shores of Guánica Bay on July 25, 1898, they were

met by cultural citizens of Puerto Rico, not simply the inhabitants of a distant

Spanish outpost. The Puerto Ricans, in 1898, politiqued, studied, prayed, sang, and

loved in Spanish. More than a century later, they still do, despite concerted efforts

by the United States government to destroy this culture during the first few decades

of occupation.”153

Given colonialism’s moral construction of the “other,” we must recognize a construction of the

“other” that empowers, rather than marginalizes.154 Recognizing an empowering construction of

the “other” requires expressing a deep appreciation for Puerto Rico’s beautifully-distinct culture.

Accordingly, understanding Puerto Rican resiliency must start with recognizing previous

153
Malavet, supra note 28, at 45.
154
Id. at 45-46.
generations that sacrificed so much to preserve Puerto Rican culture and repudiate American

exploitation and paternalism.

In the 1930s, increasing political unrest polarized the island into two respective camps—

those supporting statehood, and those supporting independence. Although commenting on which

solution is best falls outside my role as an ally, I do believe both solutions have repudiated

American colonialism in their own respective manner. Thus, for the purposes of this Paper, I treat

both as embodying Puerto Rican resiliency and repudiating American colonialism.

The burgeoning independence movement of the middle-twentieth century serves as an

illustration of Puerto Rican resiliency and a repudiation of colonialism. After Pedro Albizu

Campos led an island-wide agricultural strike in 1934, the FBI began infiltrating independence

groups and subverting their plans.155 In addition, the American government tapped General

Blanton Winship to serve as the new governor (the President could appoint the governor until

1947).156 Soon after militarizing the police force, the police orchestrated the Rio Piedras Massacre,

in which the police assassinated four nationalists in broad daylight near the University of Puerto

Rico.157 Soon after, the government passed Public Law 53, otherwise known as the Gag Law,

which “made it illegal to utter a word, sing a song, [or] whistle a tune against the United States or

in favor of independence.”158After returning in 1947 from an 11-year prison sentence, Albizu

Campos and fellow independence leaders continued attempts to “bring the world’s attention to

conditions in Puerto Rico.”159

155
A.J. Vicens, The Lost History of Puerto Rico’s Independence Movement, MOTHER JONES (Apr. 21, 2015),
https://www.motherjones.com/media/2015/04/puerto-rico-independence-albizu-campos/.
156
Id.
157
Id.
158
Id.
159
Id.
 The independence movement was a “concerted, deeply thought out, tactically precise effort

to let the world know that Puerto Rico was still the one surviving classic colony in this planet, and

that the colonial power, the United States, was supposedly the leader of the free world.”160

Heriberto Marin, a surviving activist who participated in the independence movement, reflected,

“It was the era of decolonization, the spirit of the times . . .. It was David against Goliath. Dr.

Albizu Campos told us we might die, but that we might also succeed.”161 He also reflected on the

movement’s radical inclusivity. For example, he emphasized that “[w]omen have always played a

special role in the independence struggle for Puerto Rico. . . . Dr. Albizu Campos had a saying:

‘When men’s trousers fall down, the women will raise the flag aloft.’”162 In an interview after

Hurricane Maria, Marin made “little mention” of Hurricane Maria. Despite lacking electricity, he

continued to express undying faith in Puerto Rico’s future.163

“We Puerto Ricans are also a heroic people, because we resisted Spain for five

hundred years, and now we have resisted the United States for a hundred and

nineteen years. We are like trees that not even a hurricane has been able to uproot,

because our roots grow so deeply. Our leaves may be torn off, but they will grow

again. These are the fruits of what we have sown.”164

As Marin so eloquently illustrates, the roots remain. These roots can be seen in a variety

of ways, from neighbors helping each other through the hurricane to the recent May Day protests

in San Juan. The fruit that they have borne are increasingly visible as well—Puerto Ricans have

sent a clear message rejecting American colonialism. That message, which the aforementioned

160
Id.
161
Jon Lee Anderson, The Dream of Puerto Rican Independence and the Story of Heriberto Marín, THE NEW YORKER
(Dec. 27, 2017), https://www.newyorker.com/news/news-desk/the-dream-of-puerto-rican-independence-and-the-
story-of-heriberto-marin.
162
Id.
163
Id.
164
Id.
independence movement embodied, unashamedly declares, “You have failed us. We do not need

you. Nor have we ever.” In a recent lecture at Cornell University, Rosa Ficek, a professor at the

University of Puerto Rico at Cayey, explained not only how the United States failed Puerto Rico

after the hurricane, but also how Puerto Ricans filled the void left by the federal government’s

ineptitude and callousness.165 She said, “People mobilized family and community networks, along

with material objects, . . . [creating] improved infrastructures that compensated, however

inadequately, for what was gone.”166 She proceeded to describe alternative infrastructures that

Puerto Ricans have created for survival.

For example, some set up parking lot “Laundromats” where they attached washing

machines to car batteries and nearby streams. Other examples include creating new, sustainable

food systems, using solar panels to access electricity, inventing new modes of mass

communication, repurposing fallen trees, heating meals on car hoods, offering free legal aid

services, and providing community meals. On the one hand, “[Conceptualizing the federal

government’s response] as a productive assertion of colonial power . . . [allows us to understand]

how projects of neo-liberal governance racialize bodies and devalue lives.”167 On the other hand,

she concluded that Puerto Ricans’ resilient response served as a productive assertion of Puerto

Rican culture and a repudiation of America’s colonial, neo-liberal governance.

I have personally encountered this resilience countless times over the past year. Earlier this

month, nearly 30 students from the University of Puerto Rico and the Puerto Rican Students

Association marched across campus in solidarity with hundreds of thousands of Puerto Ricans

165
See Shawn Hikosaka, U.S. and Puerto Rico Relations Following Hurricane Prevented “Temporary Institution
Change,” Says Prof, CORNELL DAILY SUN (Mar. 6, 2018), http://cornellsun.com/2018/03/06/differences-between-u-
s-and-puerto-rico-politicians-following-hurricane-prevented-temporary-institutional-change-says-prof/.
166
Id.
167
Id.
participating in nationwide May Day protesters.168 Throughout the semester, Puerto Rican students

at Cornell have passionately advocated for the island, raising awareness through protests, relief

drives, letter-writing campaigns, and Student Assembly resolutions. For example, Chris Arce, a

junior Government major and co-president of the Puerto Rican Students Association, has made

headlines for his proposed divestment resolution in the Student Assembly.169 Specifically targeting

the actions of The Baupost Group, a hedge fund run by Seth Klarman (name-sake of Klarman

Hall), the resolution called for an investigation into the university’s nearly $911 million holdings

in Puerto Rican debt. Framing the divestment resolution as an unreasonable response to the Puerto

Rican debt crisis, administrators derided the resolution. One administrator remarked, “One of our

temptations is to use the endowment for social and political causes, and while they may be worthy,

it’s very difficult to justify the impact on the University.”170 Another administrator praised the

Baupost Group and Klarman, noting that “[h]e is also a generous and selfless donor to Cornell, for

which we are extremely grateful.”171 The Student Assembly was unconvinced. It voted 22 to 0 in

favor of the resolution.172 Although President Pollack recently rejected the resolution, Chris has

not given up the fight. Instead, he has initiated similar resolutions in other assemblies to try to

override Pollack’s veto.

To say the least, I see the resiliency and character of Puerto Rico in Chris, who doubles as

my best friend. While I surely see the enduring flame of resiliency in stories from the island and

168
BreAnne Fleer, UPR Students at Cornell Protest in Solidarity with Strikes Taking Place in Puerto Rico, CORNELL
DAILY SUN (May 2, 2018), http://cornellsun.com/2018/05/02/upr-students-at-cornell-protest-in-solidarity-with-
strikes-taking-place-in-puerto-rico/.
169
Nicholas Bogel-Burroughs, Expecting an “Uphill Fight,” Student Assembly Urges Cornell to Divest from Puerto
Rican Debt, CORNELL DAILY SUN (Feb. 15, 2018), http://cornellsun.com/2018/02/15/expecting-an-uphill-fight-
student-assembly-urges-cornell-to-divest-from-puerto-rican-debt/.
170
Id.
171
Id.
172
Id.
in the 62 University of Puerto Rican students who have spent their spring semesters at Cornell, I

see it mostly brightly in Chris.

3 a.m., September 21. Utter silence. All one could hear in my room was the fan’s clanking.

Chris lay on the floor with his tear-filled eyes fixed on the ceiling. Hurricane Maria had just hit

Puerto Rico. Worried for his family and friends still on the island, Chris sat in helplessness and

despair. Then, in that space, he showed who he truly is. After deeply reflecting on his own pain

and finding the strength to cry out to God for help, he climbed to his feet and declared with sincere

conviction: “I have to serve.” His resolution extended beyond mere words. It drove him to

constantly assess how he could advocate for his fellow Puerto Ricans. From organizing panels

regarding Puerto Rico’s unincorporated status to raising thousands of dollars for relief efforts, from

sponsoring SA Resolutions addressing Cornell’s complicity with Puerto Rico’s economic status to

implementing a CALS Puerto Rican agriculture program, from leading Cornell’s efforts to host

UPR students for a semester to unceasingly serving the personal cares and needs of the many

students that Hurricane Maria affected, Chris has courageously demonstrated a long-standing

commitment to so many in the Cornell community. I see Puerto Rican resiliency in him. He

embodies “other” in the most empowering sense of the word. And through his life, he sends a

constant, clear message to America: “You will not colonize me. I do not need you.”

Why is Puerto Rican resiliency such a powerful social movement? Because it creates a

person like Chris Arce, who embodies everything that American colonialism was designed to

suppress. Since September 21, 2017, Chris and I have prayed together every night. Some of our

prayer topics have come and gone. One has remained. We have prayed that God would bring some

good from Hurricane Maria’s destruction. Little did we know that change would not initially come

in the form of political change. Rather, it has come from something much more foundational.
Resilience. After a long winter, spring has arrived. Leaves are growing back. Branches are bearing

fruit yet again. And the roots remain.