Navassa: Property, Sovereignty, and the Law of the Territories

Abstract

The United States acquired its first overseas territory—the island of Navassa, near Haiti—by conceptualizing it as a kind of property to be owned, rather than a piece of sovereign territory to be governed. The story of Navassa shows how competing conceptions of property and sovereignty are an important and underappreciated part of the law of the territories—a story that continued fifty years later in the Insular Cases, which described Puerto Rico as “belonging to” but not “part of” the United States. Contemporary scholars are drawn to the sovereignty framework and the public-law tools that come along with it: arguments about rights and citizenship geared to show that the territories should be recognized as “part of” the United States. But it would be a mistake to abandon the language and tools of property and private law, which can also play a role in dismantling the colonial structure—so long as it is clear that the entitlement ultimately lies with the people of the territories. Conceptualizing sovereignty as property of the colonized can facilitate concrete solutions like negotiated economic settlements, litigation against colonial powers, and the possibility of auctions for sovereign control.