What is a territory? Comparative federalism and state formation in North America

ABSTRACT

Territories are a common form of subnational government in the United States and Canada, but their jurisdictional purpose within each country’s federal system remains ill-defined. This article presents a new theoretically driven definition for sub-state territories and explains the purposes for their creation within the imperial land systems of both countries. It defines territories as federal possessions with circumscribed self-government and limited pathways to full constitutional membership within their respective federations. It argues that territories were created for two purposes: (1) to provide a mechanism for the orderly absorption of new land and (2) to impose uniform political systems across that land in Canada and the continental United States. This remains the case in Canada, while American territories now serve an administrative tool for the management of overseas empire.

KEYWORDS:

• sub-state territories
• comparative federalism
• imperialism
• settler colonialism
• Indigenous peoples
• state formation

1. INTRODUCTION

Territories are the living relics of North American imperialism. The United States adopted its first colonial policy shortly after the Revolutionary War in April 1784. Thomas Jefferson presented a framework to the Continental Congress for the organization and settlement of the North American interior beyond the Appalachian Mountains. France had ceded its claims over the Ohio Valley to Britain at the end of the Seven Years’ War and the British Crown subsequently closed it to colonization in the Royal Proclamation of 1763. Political elites in the Thirteen colonies cited this restriction as a key driver of revolutionary sentiment and, consequently, opening the West to settlement was something the newly formed United States wanted to address quickly after the war (Bloom, 1973; Onuf, 1983). Jefferson proposed a system for organizing, settling and admitting new states into the union on an equal basis with the original thirteen. While not a radical break from the colonial systems that had preceded it, Jefferson’s innovation was to emphasize republican political development and provide a clear pathway to statehood for these newly organized and settled areas. This expansion of American federalism required the creation of a new jurisdictional form called a ‘territory’, whose historic function was the spread of republican political institutions and the orderly absorption of land into the new American ‘Empire of Liberty’ (Hinderaker, 1997).

Territories are now a common form of subnational government in the United States and Canada: there are currently five American (American Samoa, Guam, Northern Mariana Islands, Puerto Rico and US Virgin Islands)¹ and three Canadian territories (Northwest Territories, Nunavut and Yukon).² Ranging from densely populated Caribbean islands to the vast Canadian Arctic, these territories have a combined population of 4.2 million people spread over 3.8 million km². Territories have been important forms of transitory government – a way station on the road to state or provincehood – for 31 American states and two Canadian provinces. All told, most of what is today the United States and Canada has spent some of its jurisdictional history as a territory. Despite this foundational role in the federal systems of both countries, territorial jurisdictions rarely register in North American political science and in the scholarship of comparative federalists. Territories are important not only because of the role they play in the federal systems of Canada and the United States, but also because theirs is the story of how two of the world’s oldest settler federations came to be.

This article makes two contributions to the comparative study of sub-state territories as a jurisdictional form in North America. First, it provides a definition of territories designed to facilitate their inclusion in comparative research. Territories are most often defined by what they are not. By contrast, the jurisdictional scope and structure of states and provinces are predominantly uniform and explicit. I define territories by what they are: subnational federal possessions with circumscribed self-government and limited access to full constitutional membership in their respective federations. The diversity of territories, including their varied enabling statutes and governance structures, has been a challenge for researchers seeking to compare subnational governments in Canada, the United States and other settler states. In turn, these definitional barriers have discouraged scholarship and the collection of quality data in the territories, further marginalizing their place within comparative federalism and political science generally.

Second, this paper challenges the view, most often associated with Riker, that ‘federalism is the main alternative to empire as a technique of aggregating large areas under one government’ (Riker, 1964, p. 5). The emergence of federalism in the United States and Canada was not a wholescale rebuke of British imperialism, but rather a revised continuation of longstanding historical patterns of territorial expansion and political development. The earliest lands incorporated into this system were those of Indigenous peoples residing in the Ohio Valley. Today, most people living in territories are Indigenous and/or people of colour. In fact, every North American territory except Yukon has a majority racialized population. As scholars of these territorial systems argue, holding such populations outside their respective unions was not a coincidence, but by design (Immerwahr, 2019; Sparrow, 2006; Zaslow, 1988).

A territory is not an inert jurisdictional form but an active component in the establishment of settler sovereignty across North America and in development of its racial systems. In the United States, the use of territories went even further, facilitating that country’s experiment with overseas empire at the beginning of the 20th century. Scholars arguing for the use of federalism to manage diverse and divided societies must grapple with federalism’s imperial and colonial origins, as much as those rooted in the principles of freedom, democracy and shared rule. Federalism may accommodate some forms of diversity, such as geography or language, but for the Indigenous peoples of North America, it was another tool used by non-Indigenous peoples to supplant their societies.

I begin this article by considering the place of territories in North American political science and the literature on comparative federalism. While other disciplines have considered sub-state territories, namely geography and regional studies, the general absence of territories from political science, whose focus includes jurisdictional institution, is striking for its persistence across subfields and over time. I argue this reflects the definitional murkiness of territories and challenges in data collection. Second, I answer the question ‘what is a territory?’ by canvassing the constitutional and statutory architecture of Canadian and American federalism. I compare the United States and Canada because of their shared history as British colonies, their common use of territories, and their influence over each other’s pattern of political development and territorial expansion.

Finally, I ask why territories were created. I argue that they served two initial purposes: (1) to provide a mechanism for the orderly absorption of new land and (2) to impose uniform political systems across that land. This latter purpose evolved in the United States to include the imperial management of overseas territories that did not emphasize political uniformity with state counterparts. A substantive and theoretically driven account of territories must include the jurisdictional form’s role in marginalizing Indigenous societies, as well as people of colour, through displacement or subjugation and the imposition of settler colonial rule.

2. TERRITORIES AND COMPARATIVE FEDERALISM

When I was a graduate student at the University of Toronto, a faculty member asked me about my dissertation during a departmental function. When I said I was studying ‘the territories’, she enquired, ‘Gaza or the West Bank?’ I have often reflected on her question and what it might say about the interests of political scientists and the invisibility of the North American periphery. In hindsight, that she did not reply with Puerto Rico or Yukon should not have surprised me. Territories are rarely studied or taught, and when they are considered, it is most often in passing. For example, in the study of Canadian federalism, scholars frequently use the term ‘provincial/territorial’, but almost never distinguish between these two forms of government. This phrasing is much rarer in studies of American federalism. This conflation is often appropriate when used, especially when state functions are indistinguishable. When the fundamental architecture of states/provinces and territories vary, however, more careful attention needs to be paid to these differences.

Scholars of comparative federalism do not explain the use of territories, their differences from states and provinces, or compare territories within or across countries. In two leading monographs on approaches to comparative federalism, the authors only mention territories in passing (Burgess, 2006; Hueglin & Fenna, 2015). In these and similar cross-national studies, comparative federalists use data drawn exclusively from central and state/provincial governments to explore such topics as comparative constitutionalism, intergovernmental relations, the management of diversity and comparative public policy (Burgess & Alan Tarr, 2012; Duchacek, 1970; Gagnon & Burgess, 2018) The decision to omit territories from these studies is striking. Territories have irregular constitutional status, a circumscribed role in the federal institutions of the United States and Canada, as well as majority Indigenous and racialized populations. As a foil for states and provinces, territories not only demonstrate the malleability of federal systems, but also reveal the norms that underlie them.

Scholars offer many reasons for their exclusion of territories, including lack of access to high quality data, the cost of conducting research in arctic or oversees locations, and the challenge of cross-nationally comparing jurisdictions with such diverse structures and legal bases. These barriers may explain the general absence of territories from studies where federalism is a key variable in comparative work. In cross-provincial studies, territories are frequently excluded because of ‘insufficient resources’ (Horak & Young, 2012, p. 8), to ensure ‘more focused’ research outputs (Béland & Daigneault, 2015, p. 389), and because ‘territories do not have the same constitutional standing as provinces’ (Kukucha, 2008, p. 204).

Scholars sometimes lament these exclusions. Atkinson et al. (2013), for example, offer this mea culpa: future research ‘should include the three territories … although our short book excludes the territories to focus exclusively on the provinces, comparing them with territories could help improve our understanding of governance and public policy in Canada’ (p. 158). Comparativists risk selecting on the dependent variable when excluding territories from their studies and to the detriment of the discipline’s understanding of federalism and its operation.

Territories are not wholly absent in the federalism literature. Within country comparisons are more common, especially studies comparing Yukon, the Northwest Territories and Nunavut (Abele, 1987; Abele et al., 2009; Dacks, 1981, 1990; White, 2011). There is a small body of research on territories in the United States (Kincaid, 2018; Sparrow, 2006, p. 2017) and Australia (Hopper, 1999; Saunders & Richet, 2012). By contrast, cross-national studies are very rare outside of studies comparing partially independent states, such as Puerto Rico and Greenland (Rezvani, 2016). I could only find one study comparing territories across the federal systems of Australia and Canada (Loveday et al., 1989), and no comparisons between territories in Canada and the United States.

Beyond comparative federalism, territories appear more frequently as single case studies, particularly Nunavut (Duffy, 1988; Henderson, 2007; Hicks & White, 2015) and Puerto Rico (Erman, 2019; Malavet, 2004; Trías Monge, 1997). Territorial development features prominently in Indigenous politics, including accounts of Métis resistance to territorial expansion (Gaudry, 2014; O’Toole, 2010) and Indigenous state formation (Nadasdy, 2017). There is also a robust literature on American imperialism and the current and former insular areas of the United States (Burns, 2017; Eblen, 1968; Immerman, 2010; Immerwahr, 2019). Outside political science and comparative federalism, sub-state territories are considered in the literature on territory in such disciplines as geography and regional studies. Territory and territorialization is a major field of study within these disciplines and scholars have turned their attention to the role of sub-state territories in governance, historical geography and regionalism (e.g., Braverman, 2018; Pike, 2009).

The paucity of research on territories is reflected in the teaching of American and Canadian political science. Sparrow (2017) finds that ‘almost all introductory American government textbooks omit any reference to the US territories’ and that they make no mention of ‘US geographic expansion … [or] acknowledge that people were already living in the areas acquired by the United States as it expanded’ (pp. 494–495). A review of three leading Canadian politics textbooks is less stark.³ In addition to extensive discussion of Indigenous peoples and governments, Cochrane et al. (2021) and Marland and Wesley (2020) introduce brief overviews of the territories, provide general statistics, and discuss their organic acts and fiscal policy. Brooks (2020) only mentions Nunavut and provides no definition or discussion of territories. Nevertheless, in all three textbooks, territorial content was not extensive and represented fewer than 1000 words in each.

For comparative federalists, the study of territories offers an expanded view of the origins of federal systems in the United States and Canada, their development and expansion, as well as their current political and administrative norms. Understanding the political, economic and strategic purposes of territories, as well as their ideational role in the national projects of the United States and Canada, will deepen the discipline’s theoretical understanding of federal systems and provide empirical insight into the historical and current uses of territories as tools for both public administration and imperial expansion.

Incorporating territories into the study of comparative federalism will also illuminate the co-evolution of North American settler states. The American influence on the development of Canadian federalism and westward expansion is well-documented (Laselva, 1996; Mackintosh, 1939), but its influence on the mechanics of territorial incorporation and federalism are not. In Canada, the authoritative histories of territorial development were written by Lingard (1946), Thomas (1956) and Zaslow (1971, 1988). These accounts provide some insight into Canadian constitutionalism and public administration, but they almost universally exclude the perspectives of Indigenous peoples and do not adequately address such pressing questions as federalism’s role in managing diversity.

In the United States, legal and political historians have produced a small literature on the Northwest Ordinance and organized incorporated territories (Bloom, 1973; Onuf, 1987; Williams, 1989). However, as Duffey (1995) argues, despite appearing before the Constitution in the printed version of the United States Codes, the Northwest Ordinance is the ‘least familiar’ founding document and therefore an ‘untapped resource’ for scholars (pp. 929–930). The status of America’s territories fare somewhat better with an established literature on the legal status of territories (Burnett & Marshall, 2001; Leibowitz, 1989; Ponsa, 2015). Integrating territories into the debates currently animating comparative federalism offers scholars an important window into North America’s past, but also important lessons for the future uses – and misuses – of federalism around the world.

When scholars define territories, they usually do so by contrasting them with states and provinces. This is logical given that most residents of Canada and the United States have at least some knowledge of their own provincial or state government. Canadian governments use these contrasting or negative definitions (what territories are not) to educate their publics on the jurisdictional form and operation of territories. For example, the Canadian federal government provides a guide to the ‘[d]ifferences between Canadian provinces and territories’ (Canada, 2021). An information sheet issued by the Yukon Legislative Assembly states that in contrast to the provinces, territories are not ‘entrenched in Canada’s constitution’, are ‘less secure in their existence’, and possess most, but not all, of the same jurisdictional powers (Yukon, 2012). I did not find similar efforts by American governments to educate their publics about territories, but the Department of the Interior does provide a glossary of definitions for ‘Insular Area Political Organizations’ (United States Department of the Interior, 2015). The glossary’s entry for territory is both legalistic and vague: ‘An unincorporated United States insular area.’ A positive definition (what territories are) would not only benefit civic literacy, but also provide a stronger basis for the comparative study of subnational jurisdictions within and across Canada, the United States and other Anglo-American settler states.

For most English-speaking North Americans, the word territory is mainly used in its spatial and figurative senses. These ordinary and colloquial uses of the word do not describe specific institutional structures, but rather the spatial dimensions of geographical (‘tract of land, or district of undefined boundaries; a region’), political (‘extent of the land belonging to or under the jurisdiction of a ruler, state, or group of people’), zoological (‘area selected by an animal or a group of animal and defended against others’), or metaphorical concepts (‘area of knowledge; a sphere of thought or action’) (‘Territory, n.1’, 2020). Spatial relationships and power are common elements of these definitions. Accordingly, territories are identifiable and delimited spaces, both existing and figurative, that are held or defended by an authority.

The Oxford English Dictionary (OED) defines a contemporary jurisdictional territory as a ‘protectorate or other dependency; an organized division of a country (esp. Canada, Australia, India, and the United States) administered by a federal or external government, but not yet admitted to the full rights of a state’. The earliest use of territory in this sense was by Thomas Jefferson in 1784 when he presented his Plan for Government of the Western Territory to the Continental Congress. However, the OED’s definition is imprecise and primarily references a jurisdictional form that is now virtually defunct in the United States. The largest American territory, Puerto Rico, is not administered by the federal government, nor does it have a clear or certain pathway to statehood. An updated and inclusive definition is first needed to better capture the contemporary nature of territories and, second, to enable their comparison across countries and over time.

3. TOWARDS A DEFINITION OF TERRITORY

The National Archives and Records Service organized the first scholarly conference on the history of American territories in 1969 (Bloom, 1973). In his presentation, constitutional historian Bestor (1973) considered three key questions about the constitutional development and status of territories: To whom do territories belong? How are they to be governed? What is the process for admitting a territory to full membership in a federal union? While Bestor’s analysis examined the crucial period between 1754 and 1784 that coincided with the birth of the American republic, his questions are as relevant today as they were for the framers of the US Constitution. In this section, I build upon these questions to develop a new definition for territories that takes account of developments in the territorial systems of the United States and Canada over the past two centuries.

For Bestor (1973), the question of territorial ownership was posed within the framework of early American federalism and whether the ‘locus of authority to prescribe and control settlement’ in the territories rested with the states – whose claims persisted following the Revolution – or with the newly formed federal government (p. 18). Sorting out the process of territorial expansion was a major stumbling block in ratifying the Articles of Confederation, including the political challenge of securing land cessions from states such as Virginia (Eblen, 1968; Onuf, 1983). However, in analysing how the Continental Congress came to a consensus on Western settlement, Bestor left unchallenged the assertion of American sovereignty over lands west of the Appalachian Mountains. Most strikingly, he did not seriously contemplate whether Indigenous peoples could be the owners of that land, nor the means used to establish radical title in that land by non-Indigenous peoples. This oversight extends to most scholarship on territories and, indeed, how contemporary territories are recognized in American and Canadian law. The legitimacy of territorial systems cannot just rest in how they are structured and governed, but also in how they were acquired.

The sovereignty claims that enabled the creation of the United States and Canada preceded the founding of both countries by several centuries. Spanish, French and English powers, among others, asserted their sovereignty through a variety of mechanisms, namely through the doctrine of discovery and, later, through military conquest and treaty-making. These assertions justified the dispossession, displacement and marginalization of Indigenous peoples and their political and legal orders. Constitutional scholars have characterized these claims as built on ‘fake history’ (Russell, 2021, p. 64), justified by ‘patently false belief[s]’ (Hogg, 2017) and simply ‘ludicrous’ (Lindberg, 2010). Nonetheless, the sovereignty claims upon which territories rest – along with the American and Canadian state – have been affirmed and supported by courts in both countries, although their legal logics are somewhat different.

The framers of the US Constitution understood Indigenous nations to be ‘extra-constitutional political entities’ (Nadasdy, 2017, p. 52). As such, American courts have had to square the absorption of vast swaths of North America, most often through the creation of territories, with the obvious presence of Indigenous nations on that same land. Chief Justice John Marshall of the US Supreme Court clarified the legal basis for American sovereignty through a series of influential opinions on such issues as tribal sovereignty and territorial political development. In American Insurance Company v Cotton (1828), he argued that the Constitution places the right to acquire lands through war or treaty with the federal government, whose ‘right to govern, may be the inevitable consequence of the right to acquire territory’ (p. 543). Once annexed, these lands are subject to American sovereignty and Congress has complete discretion to determine their structure, government and whether or to what extent the US Constitution applies.

Marshall portrayed American-Indigenous relations and the acquisition of Indigenous lands as occurring ‘organically’ and ‘over an extended period’ (Slattery, 2005, p. 51). Most of this land would be organized into territories and, later, admitted to the Union as equal states. Beginning with the Treaty of Paris (1783), England ceded to the United States its claims to the North American interior. These claims rested on England’s own suspect assertions. The extension of the United States to the Pacific happened rapidly thereafter, facilitated by land purchases, conquest and occupation, effectively surrounding Indigenous nations within the United States. In Cherokee v Georgia (1831), Marshall describes Indigenous nations as ‘domestic dependent nations’ and, as such:

They and their country are considered by foreign nations, as well as by ourselves, as being so completely under the sovereignty and dominion of the United States, that any attempt to acquire their lands, or to form a political connexion with them, would be considered by all as an invasion of our territory, and an act of hostility. (pp. 17–18)

By legitimizing the extension of American sovereignty across the continent, American courts were integral to territorial expansion by justifying the past and setting out the framework for future acquisitions. The American theory of sovereignty granted the federal government permission to acquire land, organize it into territories, and govern it in accordance with its own values and for its own purposes.

Canadian sovereignty has its origins in French and English claims. The earliest English charters with speculative geographical limits date to 1606, and most of what is now Canada’s Northwest was granted to the Hudson’s Bay Company through a royal charter in 1670. In contrast to the United States, Canadian law viewed ‘First Nation sovereignty – if it ever existed at all – as having been completely extinguished by the mere assertion of British sovereignty’ (Nadasdy, 2017, p. 57). This assertion established radical title, or sovereignty, rather than Crown or fee simple title, which are property rights that require extinguishment through treaty or purchase and enabled the expansion of Canadian state institutions into the Northwest following its acquisition in 1870 (McNeil, 2019).

These practices of sovereignty assertion are the starting point for all other questions: to whom do territories belong, how are they governed, and how can they evolve? In reviewing these practices, one thing is clear: from the standpoint of American and Canadian law, the answer to whom territories belong is not Indigenous peoples or, later, to the original inhabitants of lands acquired through imperial expansion. Territories are a settler invention, rooted in the constitutional and statutory frameworks of two settler states. In returning to Bestor’s questions, it is necessary to find answers within those settler frameworks. I will return to the imperial and colonial purposes of territories in the next section.

First, to whom do territories belong? Territories are federal possessions and subject to the direction and control of federal legislatures in both countries. For the United States, federal possession of territories is spelled out in Article IV of the US Constitution, which empowers Congress to ‘dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States’. The Territorial Clause grants Congress the exclusive right to acquire, organize, admit, or grant independence to territories, all of which the United States has done. The Territory Northwest of the River Ohio was the country’s first organized territory in 1787. The first territory to become a state was Tennessee in 1796. The Philippines was granted independence in 1947, while the Marshall Islands, Micronesia and Palau became states in free association with the United States between 1986 and 1994.

At the conclusion of the Spanish–American War, Spain ceded the Philippines, Puerto Rico and Guam to the United States. These acquisitions spurred significant political discord between imperialist and anti-imperialist political elites who debated whether the Constitution ‘followed the flag’ and newly acquired lands were automatically part of the United States (Burnett & Marshall, 2001, p. 4). These divisions were ultimately resolved by the Supreme Court in the Insular Cases, which developed doctrines of expansion and incorporation. Territories could be designated as either ‘incorporated’ or ‘unincorporated’, the latter of which were legally possessed by the United States but with no legal right or expectation for statehood. Unincorporated territories exist in a liminal space, not inside the United States, nor independent of it. This is the meaning of the famous phrase ‘foreign to the United States in a domestic sense’ to describe territories, coined by Justice Edward Douglass White in Downes v Bidwell (1901), and the source of the two-tiered system of American territorial possession.

There is no such differentiation among Canadian territories. Like their American counterparts, Canadian territories are also federal possession subject to the will of parliament. The acquisition of the North-Western Territory and Rupert’s Land by Canada was a key component of the Confederation compromise. Section 146 of the British North America Act, 1867 grants the federal government the power to admit other colonies, including lands surrendered by the Hudson’s Bay Company to the Crown. This power was reaffirmed in the British North America Act, 1871, which also clarified the ability of Parliament to create provinces in those territories. Provisions for the transfer of Rupert’s Land and the North-Western Territory were passed by the British Parliament in 1868 and the lands were transferred to Canada on 15 July 1870. Territories are created using ordinary federal legislation, which sets out their governance institutions and political jurisdiction.

Second, how are territories governed? Contemporary territories have circumscribed self-government and use a diverse set of political institutions that generally reflect the democratic norms of each country. In Canada, territories use the Westminster parliamentary system, although Nunavut and the Northwest Territories do so without the use of political parties (White, 2011). American territories have republican political institutions, with elected executives, legislatures and independent judiciaries. Canadian territories have greater access than their American counterparts to the institutions of intrastate federalism, with voting members of parliament, senators, regular representation in federal cabinet, and participation by territorial leaders in intergovernmental relations through mechanism such as first ministers’ meetings (Alcantara, 2013). Importantly, all eligible territorial residents are Canadian citizens and enjoy all the rights conferred by the Canadian Constitution.

Almost none of this is the case for American territories. Territorial delegates in the House of Representatives are non-voting, they have no representation in the Senate, are granted only partial access to the protections of the US Constitution, and in the case of American Samoa, are not citizens of the United States. Self-government has not always existed for the territories, and presently, the United Nations does not consider Guam, the US Virgin Islands and American Samoa as meeting the threshold for self-government, while Puerto Rico and the Northern Mariana Islands are considered self-governing (United Nations, 2021). The difference appears to be that Puerto Rico and the Northern Mariana Islands have constitutions and are designated Commonwealths. This act of self-constituting is the apparent threshold for self-government at the United Nations, which equates nominal self-determination with self-government.

Historically, the political development of American and Canadian territories was quite different. American territories were created with the intention of admitting them to the Union once they had reached the necessary population and political benchmarks as set out by Congress. The earliest enacted articulation of this policy was in the Northwest Ordinance (1787), which set out several stages of political development before the granting of statehood. First, the federal government would appoint a governor and a three-member judiciary, who would adopt the civil and criminal laws of an existing state. Once the territory had reached a population of 5000 free male inhabitants, elections for an assembly could be held. Once the population had reach 60,000 free male inhabitants, the territory could be admitted to the Union, although this could occur earlier.

In Canada, the federal government was in no hurry to grant self-government to the territories. This happened in gradual stages, eventually resulting in the granting of responsible government to the old Northwest Territories (NWT) in 1897. Following the creation of the provinces of Alberta and Saskatchewan in 1905, the territories were governed largely from Ottawa or not at all, as was the case for the NWT whose government was dormant from 1905 to 1921 (Zaslow, 1988). Pressure from territorial residents, along with global movements calling for increased self-determination, led the federal government to begin granting the Northern territories greater self-government starting in the 1960s and culminating in the granting of responsible government to Yukon 1979, the NWT in 1986 and the creation of Nunavut in 1999 (Sabin, 2014).

Finally, how can territories be admitted to full membership in their respective unions? There are limited pathways to full membership in the federal systems of Canada and the United States. Under the Territorial Clause, Congress has sole discretion to admit new states. There are six recognized methods for creating new states: ‘the union of the first 13 colonies; presentation to Congress of a territory that is already organized like a state (commonly known as the Tennessee Plan); annexation of an independent republic; creation of a new state from existing states; development of a state constitution without first obtaining explicit congressional support; and congressional enactment of legislation to enable statehood’ (Garrett, 2021, p. 2). There is nothing precluding Congress from admitting unincorporated territories as states, but there is also no legal expectation that they will do so. There is also very little territories, or the District of Columbia, can do outside the political realm to hasten statehood or independence. A constitutional amendment is required in Canada, consisting of resolutions passed by both houses of parliament and the legislative assemblies of at least two-thirds of the provinces, representing 50% of the population of all provinces (Muir, 2020).

In both countries, the admission of territories to state or provincehood is stymied by political rather than legal impediments. While political decisions about the development of territories are framed as pragmatic on both sides of the border, in the United States, they can become fodder for partisan advantage. For example, Republicans denounced support for Puerto Rican statehood as part of the Democratic Party’s ‘socialist agenda’ during the 2020 presidential election cycle (Fox News, 2019). The national Republican Party is not the only political impediment. Other states may see their actual or perceived representation in Congress diminished by the addition of Puerto Rico and other territories, in addition to resistance within the territories themselves. Independence is equally challenging. As Venator-Santiago (2013-2014, p. 76) argues, independence would ‘entail dismantling a century old system of political [and] economic institutions, including addressing the question of denaturalizing millions of U.S. citizens residing in Puerto Rico’.

In Canada, denying provincehood for the territories is framed in terms of fiscal and administrative capacity, a debate which has not progressed much since the 1980s. The first common argument against provincehood is that it is possible to achieve all jurisdiction without provincial status and may, in fact, impede political and social innovation within the territory’s governance structures (Robertson, 1985). This argument set Canada on a path to ‘devolve’ jurisdiction from the federal government to the territories and to create regional federations within federations that consist of territorial and Indigenous governments (Dacks, 1990; Sabin, 2017). For the time being, devolution has satisfied territorial political elites and assured Indigenous governments that their spheres of jurisdiction will not be impeded by the creation of a new constitutionally entrenched order of government.

The second – and perpetual – argument has been about finances. The territories cannot generate sufficient own-source revenues and now receive between 68% and 85% of their revenues from federal government transfers (Northwest Territories, 2022; Yukon, 2022). The most daunting political impediment, however, is the need to re-open the Canadian Constitution. National unity has long been an issue in Canada, with two referendums on Quebec separation in 1980 and 1995. Opening the Canadian Constitution would be a politically delicate and potentially divisive action, one that political elites in Ottawa and the provinces have been reluctant to take.

In contrast to the OED’s definition, territories are federal possessions, with circumscribed self-government and limited pathways to entry into their respective federations. They are formed out of land claimed through the extension of American and Canadian sovereignty and the displacement and marginalization of the original inhabitants. Self-government is determined and limited by their central governments and access to the institutions of intrastate federalism are varied, with full integration in Canada and poor integration in the United States. Finally, their access to full membership is stymied by a variety of political, rather than legal, reasons, including partisan disagreements, fiscal prudence, racism and perceived administrative constraints.

4. WHY TERRITORIES?

With this definition of territory in place, I now consider why they exist. Territories are an administrative manifestation of colonial and imperial power. Their original purpose was two-fold: to provide an orderly mechanism for integrating new lands into the state and a means for spreading settler political institutions to those newly acquired lands. Later, territories were used to exclude and contain Indigenous and racialized peoples, as well as to manage overseas possessions, although the latter purpose is unique to the United States. As such, territories form part of an imperial land system that maintains similar patterns of territorialization and settler colonialism common to earlier periods of North American political development. The most significant difference from their colonial predecessors is the territorial systems partial commitment to republican and/or liberal democratic institutions for its non-Indigenous inhabitants – a benefit Indigenous and racialized populations did not enjoy until the second half of the 20th century.

Territories are the administrative backbone of North American imperialism. As a part of this land system, they enabled the absorption of vast geographical areas and their reorganization into something reflecting the political, economic and social systems of their respective countries. The words imperialism and empire are sometimes understood as pejoratives when used to describe Western countries and particularly the United States. To counter this narrative, the virtues of American federalism are often compared to the ills of empire, rehabilitating America’s foundation and development as ‘exceptional’. Go (2011) dismisses this rhetoric:

What remains, then, of the notion that American expansion in the nineteenth century was an ‘exception’? It is not that expansion was devoid of colonial rule: the territorial system was even more authoritarian than British colonialism. … The only thing that remains is the fact that the territories, although subjected to colonialism, were eventually admitted to the United States. This remains one of the key bases for exceptionalists who resist the claim that American expansion was ‘imperial’. (p. 53)

Immerwahr (2019) argues the word empire can describe a country’s shape and the processes through which that shape emerged. He concludes that the ‘history of the United States is the history of empire’, even if its citizens are uncomfortable with that word (p. 401).

Thomas Jefferson used the language of empire to describe the settling of the West (Hinderaker, 1997). In designing his system for Western settlement, Jefferson had ‘no desire to break from the British Empire, only to establish an American’ (Malone, 1948, p. 412). In this sense, territory is just a synonym for colony. The historian Richard Van Alstyne recognized this as a linguistic obfuscation employed by early American leaders who had just won a war to free themselves of empire: ‘it seems probable that [this] substitution was made in order to differentiate the ‘new’ American system from that of the British, where the word “colony” had been first established in usage’ (Van Alstyne, 1969, p. 345).

Despite its vast geography, few would describe Canada as an empire. However, that does not mean that imperialism was not a driving force in the development of the Canadian state and its territorial policies, especially at the time of Confederation (Berger, 1970). Integrating Canada more fulsomely into the British Empire was a preoccupation of imperialists during the period and the acquisition of the Northwest was often framed in terms of imperial integration. As Morton (1939) recounts, one popular argument favouring the acquisition of the Northwest was to build ‘a railway from Atlantic to Pacific, and by placing steamship lines on the Pacific to run to Australia and China, thus consolidating Britain’s power in the distant parts of the Empire and of the world’ (p. 826). Thomas (1956) describes, without irony, the connection between Ottawa and Western settlers as an ‘imperial–colonial relationship’ (p. 4). In designing political institutions for the Northwest, Thomas (1956) argues:

Canadian officials were not without experience, for they had all lived, and to a certain extent were still living, in a dependent territory, and many of the bonds of colonialism had only recently been discarded. The imperial–colonial relationship and the process of gradual, unsystematic evolution in that relationship were so familiar, and in many of their aspects so acceptable, as to be one of the unconscious assumptions of Canadian political thought. (p. 4)

Where Americans sought to mask their imperial ambitions, Canadians were satisfied to emulate their British predecessors.

For decision-makers in both countries, the need to develop systems for the orderly absorption of land and their settlement became paramount. For the Americans, the concerns were three-fold. First, settlers had been slipping across the Appalachian Mountains to settle land even before the Revolutionary War. Some American elites, including George Washington, wanted to protect their property claims in these newly acquired lands from squatters, as well as to temper the excesses of land speculators (Hinderaker, 1997; Immerwahr, 2019). Second, the loyalty of these settlers to the United States could not be assured. American identity had yet to be consolidated and settlers in lightly governed lands were unlikely to be quickly acculturated. The third, and perhaps most pressing, concern was to avoid costly wars with Indigenous peoples over the incursions of settlers into their lands. This had been a key reason for restricting settlement beyond the Appalachians in the Royal Proclamation of 1763. This became a problem for the newly formed United States, which decided to address its relations with Indigenous peoples through the United States Department of War until 1849.

The motivations for settling Western Canada were somewhat different from those of the United States. A primary concern for Canadians was the annexation of the Northwest by Americans. Canadians had witnessed the annexations of Oregon and Texas with alarm and understood that if they did not secure the prairies, they could be next (Morton, 1939). At the same time, Canadians saw the economic wealth that Western settlement could generate and wanted to emulate American success. This would require opening the West to agricultural settlement and the construction of a railway to the Pacific. To secure both, Indigenous title would need to be extinguished, leading to the negotiation of the Numbered Treaties and the displacement of First Nations peoples to reserves. Here, the terror in territory becomes clear. In order to accomplish the necessity of clearing the plains, Indigenous peoples were starved and the Canadian state engaged in a process of cultural genocide (Daschuk, 2013).

In the continental United States and Canada, a second purpose of territories was to impose uniform political systems across newly absorbed lands. In Article IV, Section 4, the US Constitution states that the ‘United States shall guarantee to every State in this Union a Republican Form of Government’. From the outset, the developmental path for organized incorporated territories was towards republican government and statehood. As Bestor notes, one of the earliest motions adopted by the Continental Congress in 1780 was to ‘make sure that territories would be developed “for the common benefit,” that they would be given “republican government,” and that they would be hastened to full and equal membership of the Union’ (Bestor, 1973, p. 25). In other words, beyond expansion, the territories were part of a common trust to benefit America and to remake it in its own image. Congress made this intention clear in the Ordinance of 1784, whose sixth clause holds that territorial governments ‘shall be republican’ (Boyd, 1952, p. 614). A republican form of government was also outlined in the Northwest Ordinance, which shaped the development of territorial government in the continental United States.

Canada’s territories were similarly developed for the ‘purposes of the Dominion’, a phrase first used in the Manitoba Act 1870 to justify federal control of Western Canadian natural resources (Zaslow, 1971). Beyond the promise of economic spoils, the territories were also an opportunity to continue spreading political institutions reflecting British liberal traditions across the continent – a process that had started for Canadians decades earlier in Nova Scotia. A resolution adopted by the House of Commons in 1867 proclaimed that ‘the welfare of a sparse and widely scattered population of British subjects, of European origin, already inhabiting these remote and unorganized territories, would be materially enhanced by the formation therein of political institutions bearing analogy, as far as circumstances will admit, to those which exist in several provinces of the dominion’ (p. 159). Again, the political systems and aspirations of Indigenous peoples were not only absent, but they were also violently supressed by the Canadian state. At this time in Canadian history, there was no room for the recognition of diverse political systems. A prime example of this is Métis resistance to the acquisition of Rupert’s Land and its incorporation into Canada. During the Red River Resistance of 1869–70, the Métis Nation resisted the imposition of non-republican forms of government and fought for their political rights using the ‘vocabulary of liberty, and most notably positive liberty not only as self-government, but also as non-domination’ (O’Toole, 2010, p. 217).

Because the land upon which territories were created belonged to someone else, the control and management of Indigenous and racialized peoples became an important dimension of the territorial system. For continental American territories and in Canada, this meant removing Indigenous peoples or, where that was not possible, restricting their movement and access to land. The Northwest Territories was briefly closed by Ottawa in 1921 following the discovery of oil in Norman Wells in order to ‘protect’ Indigenous peoples from settlers (Zaslow, 1971). The government had witnessed the challenges faced by Indigenous communities following the Klondike Gold Rush two decades earlier, and sought to use the territories as an open-air preserve for Northern Indigenous peoples.

In America’s overseas possessions, removal was not possible and, given the racial composition of islands such as Puerto Rico and the Philippines, their integration into the United States was untenable for the American political class. Justice White in Downes (1901) worried about the possibility of admitting ‘alien races, differing from us in religion, customs, laws, methods of taxation, and modes of thought’ (p. 286) to the United States. Admitting them, he wrote ‘may wreck our institutions … and the whole structure of the government be overthrown’ (p. 313). The only majority–minority territory admitted to the United States has been Hawaii, which was annexed by the United States in 1900 and became an organized incorporated territory later that year. This difference in treatment reflects the composition of the island’s population, about 20% of whom were white settlers. Their pressure on Washington led to incorporated status and eventual statehood (Bell, 1984).

In what Eblen (1968) describes as the Third United States Empire – a period between the 1890s and 1920 when the United States acquired ‘Alaska and a number of islands and concessions in the Pacific and Caribbean’ – the role played by territories in political integration of the United States ended. No longer would territories as a steppingstone to statehood, but would rather serve to hold racialized populations outside the American constitutional and political order. In Canada, by contrast, the territories continue their role in political integration with all three territorial governments reflecting the political and administrative norms of their provincial counterparts. At the same time, however, Indigenous peoples in the territories have created space for the re-emergence of their political and legal orders at the regional level. The absence of a rigid constitutional framework does allow for some flexibility in political arrangements, but not a wholesale reformation of the territorial governance system.

Territories have many purposes, but they serve the expansion of the American and Canadian states and their political and economic systems. The expansion of the United States and Canada required well-calibrated administrative tools and the ability to organize and standardize governance across vast geographies.

5. CONCLUSIONS

This story of territories is intertwined with the expansion and development of the United States and Canada. In the conclusion to his pathbreaking book on imperialism and territorial government, Eblen (1968) criticizes the tendency of researchers to ‘treat territorial government on the continent as a thing apart’ (p. 318). Territories ought to be studied alongside other aspects of North American government ‘not only to improve our perspective on United States colonialism but on the entire political system’ (p. 318). This desire should apply to Canada too, but as this article demonstrates, Eblen’s hope has not materialized in the literature.

It is unfortunate that territories do not hold a more prominent place in the study and practice of comparative federalism, but this is in part because they are poorly defined. The definition presented here clarifies the constitutional and administrative status of territories and, in turn, provides a theoretically driven account for their inclusion in research on comparative federalism. Territories are diverse, but what they share in common can illuminate pressing questions at the intersection of federalism and public law, comparative policy, the politics of race and political development.

For example, while territories were a primary administrative tool for expanding settler states, they may also offer an opportunity for postcolonial reconciliation. The legal structure of Canadian territories is a highly flexible dimension of its federal system, while still maintaining the core elements of Westminster parliamentary democracy. This flexibility has facilitated innovation and experimentation in the governance of Canada because of the absence of constitutionally entrenched governments (i.e., provinces), which has created space for recognizing and empowering Indigenous forms of government.

The most prominent example is Nunavut, which was created in 1999 as a form of Indigenous public government. Indigenous governments in the territories have introduced an interesting paradox: territories maintain their inferior status within the federation, while simultaneously enabling Indigenous self-determination at the regional level. From this perspective, full integration into Canada through provincehood may not be beneficial for Indigenous communities in territories. Northern Indigenous peoples have had the greatest success in Canada in reasserting their political orders and entrenching settler government may serve to undermine that success. This is one example of a question that could be missed – can federalism facilitate Indigenous reconciliation? – when territories are left off our research agendas.

By contrast, in the United States, territories remain a tool of imperial expansion and administration. American territories and their residents are held at arm’s-length from the rest of the United States, both in their exclusion from the institutions of federal governance and, in the case of American Samoa, the full rights of citizenship. The role of territories in the integration and expansion of the United States is therefore forestalled with contemporary territories serving as a liminal space between independence and incorporation.

Territories remain vital to understanding North America’s federal systems. They are not an inert jurisdictional form but an active component in the establishment of both country’s settler states and their expansion across the continent. Territories reflect what these states value politically, economically and especially in terms of race and Indigeneity.

ACKNOWLEDGEMENTS

The author thanks Lily Schricker and Maia Lugar for their research assistance and Kyle Kirkup, colleagues, and the anonymous reviewers for their insightful comments and encouragement.

DISCLOSURE STATEMENT

No potential conflict of interest was reported by the author.

Additional information

Funding

This work was supported by the Social Sciences and Humanities Research Council of Canada [Insight Development grant number 430-2021-00672].

Notes

1 I have excluded Washington, DC, from this study as a special jurisdictional case. While it meets the proposed definition of territory, the origin and purpose of Washington differs significantly from those of incorporated or unincorporated territories and is better treated in comparison with other federal capitals. Washington was created as the federal capital. The practice of designating or creating federal capitals is a pragmatic solution that enables the most control over a national capital by the federal government. Canada has not followed this practice, although Australia’s National Capital Territory follows the pattern set by the United States. For a discussion of national capitals in federations, see Rowat (1973) and Slack and Chattopadhyay (2009).

2 Other former British colonies have also adopted territories as a subnational jurisdictional form in their federal system, including Australia and India. Outside these federal systems territories are also used. The UK and France have several overseas territories, such as Bermuda or Saint Pierre and Miquelon, while countries such as New Zealand share a Crown with free associated states, such as Niue.

3 The textbooks were published by Oxford University Press Canada and Top Hat, formerly Nelson Canada. For each text, the index was used to identify definitions and passages using key terms including ‘territories’, ‘Yukon’, ‘Northwest Territories’ and ‘Nunavut.’ The excerpts were coded based on substantive or passive reference and by topic discussed.