1. Berkofer, Robert, “The Northwest Ordinance and the Principle of Territorial Evolution,” in The American Territorial System, ed. Bloom, John Porter (Athens, Ohio, 1973)Google Scholar; Sparrow, Bartholomew, The “Insular Cases” and the Emergence of America Empire (Lawrence, Kans., 2006)Google Scholar (see esp. chap. 1); Farrand, Max, The Legislation of Congress for the Government of the Organized Territories of the United States: 1789–1895 (Newark, 1896), 52–53Google Scholar; Ramos, Efrén Rivera, “The Legal Construction of American Colonialism: The Insular Cases (1901–1922),” Revista Universidad de Puerto Rico 65 (1996): 225–328Google Scholar.

2. The cases included within this term vary. Some scholars refer only to the 1901 cases, while others include a set of cases leading all the way to Balzac v. Porto Rico 258 US 298 (1922). For the purposes of this article, I use the term Insular Cases to refer to a set of cases that created the legal concepts of incorporated versus unincorporated territories and espoused what that meant for territorial administration and policy. I am not concerned with defining a particular set of cases; but for reference, the following is a list of cases that are typically included in the definition of the Insular Cases: De Lima v. Bidwell 182 US 1 (1901); Goetze v. United States 182 US 221 (1901); Dooley v. United States 182 US 222 (1901); Armstrong v. United States 182 US243 (1901); Downes v. Bidwell 182 US 244 (1901); Huus v. New York and Porto Rico Steamship Co. 182 US 392 (1901); Dooley v. United States 183 US 151 (1901); Fourteen Diamond Rings v. United States 183 US 176 (1901); Hawaii v. Mankichi 190 US 197 (1903); Kepner v. United States 195 US 100 (1904); Dorr v. United States 195 US 138 (1904); Gonzales v. Williams 192 US 1 (1904); Rasmussen v. United States 197 US 516 (1905); Dowdell v. United States 221 US 325 (1911); Ocampo v. United States 234 US 91 (1914); Balzac v. Porto Rico 258 US 298 (1922).

3. Sparrow, The “Insular Cases” and the Emergence of America Empire, 8; Burnett, Christina Duffy and Marshall, Burke, eds., Foreign in a Domestic Sense (Durham, 2001)CrossRefGoogle Scholar; Ramos, Efrén Rivera, The Legal Construction of Identity: The Judicial and Social Legacy of American Colonialism in Puerto Rico (Washington, D.C., 2001)CrossRefGoogle Scholar.

4. Remini, Robert V., “The Northwest Ordinance of 1787: Bulwark of the Republic,” Indiana Magazine of History 84, no. 1 (March 1988): 17Google Scholar.

5. Utah Territory was not the only example of the United States government using its authority in increasingly aggressive ways to withhold statehood and political rights from territorial governments and territorial residents. New Mexico Territory, for example, spent sixty-two years in territorial status and was dismissed as a strong candidate for statehood because of its largely Hispanic Catholic population. Arizona had a similar fate, although in that case there were fewer people who held Hispanic ancestry and instead the issue was a lack of population as well as the influence of a small, but important, Mormon population. Mormons also caused issues with statehood in Idaho Territory. I focus on Utah Territory because it demonstrates the clearest example of a concerted effort of all three national branches to deny rights to a territorial entity and its residents prior to the Insular Cases, but it was not the only possible example to survey. For information on New Mexico Territory, see Larson, Robert, New Mexico’s Quest for Statehood: 1846–1912 (Albuquerque, 1968)Google Scholar, and Lamar, Howard, The Far Southwest: 1846–1912: A Territorial History, rev. ed. (Albuquerque, 2000)Google Scholar, which also covers Arizona, Utah, and Colorado Territories. For Idaho Territory, see Wells, Merle, “The Idaho Anti-Mormon Test Oath, 1884–1892,” Pacific Historical Review 24, no. 3 (August 1955)CrossRefGoogle Scholar; Wells, Merle, “Origins of Anti-Mormonism in Idaho, 1872–1880,” Pacific Northwest Quarterly 47, no. 4 (October 1956)Google Scholar; and Thompson, Dennis, “Religion and the Idaho Constitution,” Pacific Northwest Quarterly 58, no. 4 (October 1967)Google Scholar.

6. Utah Territory Organic Act, 9 Stat. 453 (1850).

7. Utah Enabling Act of 1894, 28 Stat. 107.

8. Gordon, Sarah, The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth-Century America (Chapel Hill, 2002), 95Google Scholar; Durham, Homer G., “A Political Interpretation of Mormon History,” Pacific Historical Review 13, no. 2 (June 1944): 136–50CrossRefGoogle Scholar.

9. Eblen, Jack, The First and Second United States Empires: Governors and Territorial Government, 1784–1912 (Pittsburgh, 1968), 44Google Scholar.

10. Gordon’s The Mormon Question is the most in-depth of these studies. There has also been significant attention within the legal and theoretical scholarship. For example, see Oman, Nathan, “Natural Law and the Rhetoric of Empire: Reynolds v. United States, Polygamy, and Imperialism,” Washington University Law Review 88 (2011)Google Scholar; Phipps, Kelly, “Marriage and Redemption: Mormon Polygamy in the Congressional Imagination, 1862–1887,” Virginia Law Review 95 (2009)Google Scholar; Sears, Rex, “Punishing the Saints for Their ‘Peculiar Institution’: Congress on the Constitutional Dilemmas,” Utah Law Review (2001)Google Scholar; and Vazquez, Richard, “The Practice of Polygamy: Legitimate Free Exercise of Religion or Legitimate Public Menace? Revising Reynolds in Light of Modern Constitutional Jurisprudence,” Journal of Legislation and Public Policy 5, no. 1 (Fall 2001)Google Scholar.

11. Gordon, The Mormon Question, 4.

12. For discussions of the reasons behind the move west and the initial setting up of the new Mormon society in Deseret, see Lamar, Howard, The Far Southwest: 1846–1912: A Territorial History, rev. ed. (Albuquerque, 2000), 273–80Google Scholar; Gordon, The Mormon Question, 77–83.

13. Levinson, Stanford, “Installing the Insular Cases into the Canon of Constitutional Law,” in Burnett, Christina Duffy and Marshall, Burke, eds., Foreign in a Domestic Sense: Puerto Rico, American Expansion, and the Constitution (Durham, 2001), 121–39Google Scholar.

14. Ramos, Efrén Rivera, “Deconstructing Colonialism: The ‘Unincorporated Territory’ as a Category of Domination,” in Burnett, and Marshall, , eds., Foreign in a Domestic Sense, 104–17Google Scholar.

15. Neuman, Gerald and Brown-Nagin, Tomiko, eds., Reconsidering the Insular Cases: The Past and Future of the American Empire (Cambridge, Mass., 2015)CrossRefGoogle Scholar.

16. Cleveland, Sarah, “Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power Over Foreign Affairs,” Texas Law Review 81, no. 1 (November 2002), esp. 200–268Google Scholar.

17. Sparrow, The “Insular Cases” and the Emergence of American Empire (Lawrence, Kans., 2006), 250.

18. Ibid., 28–29.

19. See the initial discussion in Farrand, The Legislation of Congress for the Government of the Organized Territories of the United States, 1789–1895, 16–37, esp. 36–37. In addition, Eblen, The First and Second United States Empires: Governors and Territorial Government, 1784–1912, focuses primarily on territorial policy through the 1840s.

20. This list includes: Northwest Territory (16 years), Southwest Territory (6 years), Mississippi Territory (19 years), Indiana Territory (16 years), Territory of Orleans (8 years), Michigan Territory (32 years), Illinois Territory (9 years), Missouri Territory (9 years), Alabama Territory (2 years), Arkansas Territory (17 years), Florida Territory (23 years), Wisconsin Territory (12 years), Iowa Territory (8 years), Oregon Territory (11 years), Minnesota Territory (10 years), and Kansas Territory (7 years).

21. Eblen, Jack, The First and Second United States Empires: Governors and Territorial Government, 1784–1912 (Pittsburgh, 1968), 171–200Google Scholar.

22. The best surveys of territorial policy before the Civil War come from Eblen’s, The First and Second United States Empires: Governors and Territorial Government, 1784–1912 and Farrand’s The Legislation of Congress for the Government of the Organized Territories of the United States. For primary sources, see Clarence Edwin Carter’s The Territorial Papers of the United States series, a curated collection of important documents organized by territory that culminated chronologically with Wisconsin Territory in the 1840s. These were published by the US General Printing Office starting in 1934 and ending in 1962. Volume 27, published in 1969, was compiled by John Porter Bloom upon the death of Carter.

23. There are many accounts of Jefferson’s work on the 1784 Ordinance and even more discussing the creation of the Northwest Ordinance of 1787. For example, see Pease, Theodore, “The Ordinance of 1787,” Mississippi Valley Historical Review 25, no. 2 (September 1938)CrossRefGoogle Scholar; Eblen, The First and Second United States Empires: Governors and Territorial Government, 1784–1912, 17–47; and Kluger, Richard, Seizing Destiny: How America Grew from Seas to Shining Sea (New York, 2007), 189–202Google Scholar.

24. Farrand, The Legislation of Congress for the Government of the Organized Territories of the United States, 53.

25. Cleveland, Sarah, “Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power Over Foreign Affairs,” Texas Law Review 81, no. 1 (November 2002), 173–74Google Scholar.

26. Ibid., 178.

27. Cleveland, “Powers Inherent in Sovereignty,” 167–81; Eblen, The First and Second United States Empires: Governors and Territorial Government, 1784–1912, 146–48; Carter, Edwin Clarence, ed., The Territorial Papers of the United States, Vol. XII, The Territory of Louisiana-Missouri, 1803–1806 (Washington, D.C., 1948)Google Scholar; “A Bill for the Government of the Territory of Louisiana,” 87–89.

28. Neuman, Gerald, Strangers to the Constitution: Immigrants, Borders, and Fundamental Law (Princeton, 1996), 56–57Google Scholar. See 13 Annals of Cong. (1804) for the original debate.

29. Ibid., 57.

30. Cleveland, “Powers Inherent in Sovereignty,” 180.

31. The relatively more arid high plains and mountains of the American West supported ranching much more than the intensive small-scale farming of the Midwest. Where arable land existed, like the Rio Grande valley in what became New Mexico Territory, population density was considerably higher. Upon the connection of railways into the West, settlement also picked up. Lamar, Howard, The Far Southwest, 1846–1912: A Territorial History, rev. ed. (Albuquerque, 2000), 141–42Google Scholar.

32. Lamar, The Far Southwest, 23–29, 89–91; Larson, Robert, New Mexico’s Quest for Statehood: 1846–1912 (Albuquerque, 1968)Google Scholar, 17, 20, 124–25, 154, 160, 173, 177–78, 187.

33. New Statehood Bill, S. Rep. No. 2206, Pt. 1 to accompany HR 12543, 57th Cong., 2nd sess., 9.

34. This list includes: Nebraska Territory (13 years), New Mexico Territory (62 years), Utah Territory (46 years), Washington Territory (36 years), Colorado Territory (15 years), Dakota Territory (28 years), Nevada Territory (3 years), Arizona Territory (49 years), Idaho Territory (27 years), Montana Territory (25 years), Wyoming Territory (22 years), and Oklahoma Territory (18 years).

35. Talbot, Christine, Foreign Kingdom: Mormons and Polygamy in American Political Culture, 1852–1890 (Champaign, 2013), 20CrossRefGoogle Scholar.

36. Ibid., 27.

37. Lamar, The Far Southwest, 275–80; Gordon, The Mormon Question, 26.

38. Cong. Globe, 32nd Cong., 1st sess., Appendix 86 (1851).

39. Elder Olson Pratt, “Celestial Marriage,” Journal of Discourses, 54.

40. Gordon, The Mormon Question, 5.

41. “Republican Party Platform of 1856,” John Woolley and Gerhard Peters, The American Presidency Project, http://www.presidency.ucsb.edu/ws/index.php?pid=29619. (Emphasis added.)

42. Gordon, The Mormon Question, 58.

43. Ibid., 26.

44. Quinn, D. Michael, The Mormon Hierarchy: Extension of Power (Salt Lake City, 1997), 199Google Scholar.

45. Ibid., 214–18.

46. Gordon, The Mormon Question, 196.

47. Poll, Richard and Mackinnon, William, “Causes of the Utah War Reconsidered,” Journal of Mormon History 20, no. 2 (Fall 1994)Google Scholar.

48. Gordon, The Mormon Question, 60–61.

49. President James Buchanan, “First Annual Message to Congress on the State of the Union,” John Woolley and Gerhard Peters, The American Presidency Project, http://www.presidency.ucsb.edu/ws/index.php?pid=29498.

50. Poll and Mackinnon, “Causes of the Utah War Reconsidered”; Gordon, The Mormon Question, 60–62; Lamar, The Far Southwest, 293–302.

51. Lamar, HowardThe Far Southwest: 1846–1912 A Territorial History Rev. Ed. (Albuquerque, 2000), 300–302Google Scholar.

52. Allen, James, “Ecclesiastical Influence on Local Government in the Territory of Utah,” Arizona and the West 8, no. 1 (Spring 1966): 37–38Google Scholar.

53. Dred Scott v. Sandford, 60 US 393 (1857).

54. Dred Scott v. Sandford, 60 US 393 (1857), 446.

55. Neuman, Strangers to the Constitution: Immigrants, Borders, and Fundamental Law, 61.

56. During the 37th Congress (1861–63), there were between 16 and 19 Senate seat vacancies and between 57 and 63 House seat vacancies, most of which were due to vacated Southern legislators. This left Democrats, the primary opposition to federal interference in the territories, with less than 25 percent of all congressional votes.

57. It was passed by the House on 28 April 1862 (Journal of the House of Representatives of the United States 59, 28 April 1862, 617–18) and then later by the Senate 37–2 (with amendment) (https://www.govtrack.us/congress/votes/37–2/s347), after which the House agreed to the Senate version as amended by voice vote.

58. Morrill Anti-Bigamy Act of 1862, H.R. 391, 37th Cong., 2nd sess., 3.

59. Gordon, The Mormon Question, 69.

60. Ibid., 112.

61. ProQuest Historical Newspapers: New York Times.

62. Phipps, Kelly, “Marriage and Redemption: Mormon Polygamy in the Congressional Imagination, 1862–1887,” Virginia Law Review 95 (2009): 468–69Google Scholar.

63. Poland Act of 1874, Pub. L. No. 43–469, 18 Stat. 253 (1874). The only jurisdictional areas left under the control of the probate courts were estate and guardianship.

64. House Vote: https://www.govtrack.us/congress/votes/43-1/h183; Senate Vote: https://www.govtrack.us/congress/votes/43-1/s267.

65. Guynn, Randall and Shaerr, Gene, “The Mormon Polygamy Cases,” Sunstone Magazine 11, no. 5 (September 1987): 8–27Google Scholar.

66. Reynolds v. US, 98 US 145 (1878).

67. Reynolds v. US, 98 US 145 (1878), 166.

68. Reynolds v. US, 98 US 145 (1878), 166.

69. Oman, “Natural Law and the Rhetoric of Empire: Reynolds v. United States, Polygamy, and Imperialism,” 681.

70. House Vote: https://www.govtrack.us/congress/votes/47-1/h64; Senate Vote: https://www.govtrack.us/congress/votes/47-1/s272

71. Edmunds Act (Anti-Polygamy Act of 1882), Pub. L. No. 47-47, 22 Stat. 30b.

72. 47 Cong. Rec. 1155–56 (1882).

73. Gordon, The Mormon Question, 155.

74. Ibid.

75. Murphy v. Ramsey, 114 US 15 (1885).

76. Ibid., 762–63.

77. This was officially the first legal act operating in Utah Territory that required civil registration of marriages. Prior to the Edmunds-Tucker Act, Pub. L. No. 49-397, 24 Stat. 635, marriages were recorded only by the Church under territorial law. Madsen, Carol, “‘At Their Peril’: Utah Law and the Case of Plural Wives, 1850–1900,” Western Historical Quarterly 21, no. 4 (November 1990): 429CrossRefGoogle Scholar.

78. Edmunds-Tucker Act (Anti-Polygamy Act of 1887) Pub. L. No. 49-397, 24 Stat. 635.

79. In both cases, a significant portion of legislators declined to register a vote. The portion was 34 percent in the Senate and 24 percent in the House. House vote: https://www.govtrack.us/congress/votes/49-2/h274.%20Senate%20vote:%20https://www.govtrack.us/congress/votes/49-2/s398.

80. The Edmunds-Tucker Act (Anti-Polygamy Act of 1887) Pub. L. No. 49-397, 24 Stat. 635, was not effectively repealed until 1978, when Congress repealed limitations on the land holdings of religious corporations (Pub. L. No. 95-584, 92 Stat. 2483).

81. The Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. US, 136 US 1 (1890).

82. Ibid., 42 (emphasis added).

83. Ibid., 42–43; Benner v. Porter 50 US 235, 242; National Bank v. County of Yankton 101 US 129, 133.

84. The Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. US, 136 US 1 (1890), 49–50.

85. Ibid., 63–64.

86. Utah Enabling Act of 1894, 28 Stat. 107. § 3.

87. Guynn and Shaerr, “The Mormon Polygamy Cases,” 8.

88. Cong. Globe, 35th Cong., 1st sess., 1084 (1858).

89. Cong. Globe, 37th Cong., 3rd sess., 119 (1862).

90. Cong. Record, 43rd Cong., 1st sess., 4474 (1874).

91. For a comprehensive examination of this idea, see Burnett and Marshall, eds., Foreign in a Domestic Sense.

92. The debate primarily took place within the Harvard Law Review and the Yale Law Review, with additional articles in other law reviews, from 1898 and 1899. Among the most important essays: Lowell, Abbott Lawrence, “The Status of Our New Possessions: A Third View,” Harvard Law Review 13 (1899)CrossRefGoogle Scholar; Langdell, C. C., “The Status of our New Territories,” Harvard Law Review 12 (1899)CrossRefGoogle Scholar; Thayer, James Bradley, “Our New Possessions,” Harvard Law Review 12 (1899)CrossRefGoogle Scholar; Baldwin, Simeon, “The Constitutional Questions Incident to the Acquisition and Government by the United States of Island Territory,” Harvard Law Review 12 (1898)Google Scholar; and Gardiner, Charles, “Our Right to Acquire and Hold Foreign Territory,” American Law Review 33 (1899)Google Scholar.

93. Discussions of the three arguments are common in the scholarship of the Insular Cases. Among the most comprehensive treatments are Sparrow, , The “Insular Cases” and the Emergence of American Empire (Lawrence, Kans., 2006)Google Scholar; Ramos, “The Legal Construction of American Colonialism; and Burnett and Marshall, eds., Foreign in a Domestic Sense.

94. This viewpoint was primarily advocated in Langdell, “The Status of our New Territories”; Thayer, James Bradley, “Our New Possessions,” Harvard Law Review 12 (1899)CrossRefGoogle Scholar; and Gardiner, “Our Right to Acquire and Hold Foreign Territory.”

95. This viewpoint was primarily advocated in Baldwin, Simeon, “The Constitutional Questions Incident to the Acquisition and Government by the United States of Island Territory,” Harvard Law Review 12 (1898)Google Scholar; Randolph, Carman, “Constitutional Aspects of Annexation,” Harvard Law Review (1898)CrossRefGoogle Scholar; and Shipman, Paul, “Webster on the Territories,” Yale Law Journal 9, no. 5 (1900)CrossRefGoogle Scholar.

96. Dred Scott v. Sandford, 60 US 393 (1857).

97. Sparrow, The “Insular Cases” and the Emergence of American Empire, 47.

98. Lowell, “The Status of Our New Possessions. Lowell did believe that the Constitution automatically extended over all territories acquired by the United States but did not automatically apply all of its protections to those places and the people living there. It was up to Congress to explicitly apply those through organic acts or via the language of treaties that acquired the lands.

99. Oman, “Natural Law and the Rhetoric of Empire,” 701.

100. Thompson v. Utah 170 US 343 (1898).

101. Lowell, “The Status of Our New Possessions, 168.

102. Langdell, “The Status of our New Territories,” 387, 387n.

103. The Guano Islands Act, 11 Stat. 119. (1856). The Act enabled American citizens (and via them, American corporations) to take possession of unclaimed islands with guano deposits. The land was not considered a territory of the United States. Instead, the legislation used the otherwise meaningless legal term that the possession was to be considered “appertaining to the United States” (§1).

104. Burnett, Christina Duffy, “Untied States: American Expansion and Territorial Deannexation,” University of Chicago Law Review 72, no. 3 (Summer 2005)Google Scholar.

105. Burnett, Christina Duffy, “The Edges of Empire and the Limits of Sovereignty: American Guano Islands,” American Quarterly 57, no. 3 (September 2005)CrossRefGoogle Scholar.

106. Burnett, “Untied States,” 802.

107. Ramos, “The Legal Construction of American Colonialism,” 2.

108. Cleveland, “Powers Inherent in Sovereignty,” 237–38; Ramos, “The Legal Construction of American Colonialism,” 296–98.

109. Cleveland, “Powers Inherent in Sovereignty,” 231.

110. Pomeroy, The Territories and the United States, 1861–1890 (Seattle, 1947), 107–8.

111. Farrand, The Legislation of Congress for the Government of the Organized Territories of the United States, 36–37.

112. Cleveland, “Powers Inherent in Sovereignty,” 207.

113. American Insurance Company v. Canter, 26 US 511 (1828). Murphy v. Ramsey, 14 US 15 (1885).

114. Cleveland, “Powers Inherent in Sovereignty,” 207.

115. Torruella, Juan, “The Insular Cases: The Establishment of a Regime of Political Apartheid,” University of Pennsylvania Journal of International Law 29 (Winter 2007): 286Google Scholar.

116. Ibid., 290.

117. Ramos, The Legal Construction of Identity, 113.

118. Joy, The Right of the Territories to Become States of the Union, 13.

119. Ibid., 41–42.

120. Sparrow, The “Insular Cases” and the Emergence of American Empire, 222.

121. Lyle Denniston, “No same-sex marriages in Puerto Rico—yet,” SCOTUSblog, 9 March 2016, http://www.scotusblog.com/2016/03/no-same-sex-marriages-in-puerto-rico-yet/.