Speaker 1: 0:01

Welcome to Strictly Facts, a guide to Caribbean history and culture, hosted by me, alexandra Miller. Strictly Facts teaches the history, politics and activism of the Caribbean and connects these themes to contemporary music and popular culture. Hello, strictly Facts family. Welcome back to another episode of Strictly Facts a guide to Caribbean history and culture, with me Alexandria, bringing you yet another riveting conversation on Caribbean history.

Speaker 1: 0:32

We had a great discussion some time ago talking about Puerto Rico as a US colony and the decades upon decades, or even centuries, long years of activism, really on behalf of Puerto Ricans who want independence from the US, and you know that sort of story.

Speaker 1: 0:50

But in today's episode we're approaching that conversation from a different angle, really focusing on Puerto Rico from the perspective of the long history of US legal decisions that have allowed for Puerto Rico to not only remain a colony but also face some of the systemic issues it has, especially of late, with, you know, natural disasters and things to that nature. So joining me for this episode is Dr Monica Jimenez, assistant professor of African and African diaspora studies at the University of Texas, austin. Our topic today really falls in line with Dr Jimenez's upcoming book Making Never, never, land Race and Law in the Creation of Puerto Rico, which is due out by the University of North Carolina Press in June. So, dr Jimenez, thank you so much for being on this episode with me. Why don't we start with you telling our listeners a bit about yourself, your connection to the region and what's inspired your research, looking at law, colonialism and race, of course, in Latin America and the Caribbean?

Speaker 2: 1:57

Thank you so much, alexandria, for having me on your podcast today. I'm super excited to be here and I'm super excited to talk to you about this. I have been working on this book in some form or fashion since I was a law student at the University of Texas, so to see it sort of come to fruition is really, really meaningful for me. So I am from Puerto Rico, I'm from Ponce.

Speaker 2: 2:19

My family moved to Houston, texas, when I was a child, and so I grew up in the Houston area, going back and forth between Puerto Rico and the US mainland, at a time when there were very few Puerto Ricans in Houston. So I like to say we were kind of a first wave of Puerto Ricans that moved to the Houston area to work in the petrochemical industry, and so my family was a part of a very small migration that happened in the mid 80s from mostly the southern coast of Puerto Rico, the Caribbean coast, in pursuit of that industry which had been present in Puerto Rico and kind of shut down in the mid 80s as a result of the end of some of the tax incentives that had drawn the industry to Puerto Rico in the first place and which I talk a little bit about in the book.

Speaker 2: 3:06

So you know, grew up in that pretty typical kind of migrant Caribbean migrant feeling of being from here and from there and not from here and not from there, right and by then, of like back and forthness, and I think in some ways that's always motivated my questions about Puerto Rico, certainly, and about the Caribbean and about migration and especially growing up in the southwest, where migration and migrants are sort of a fact of life and have always been a fact of life. That's always been a question, right? Why do people move and how and and what are their experiences when they're moving? And I think because of my own, you know, family's migration at a young age, for me that was always a kind of background question.

Speaker 2: 3:47

So I went to law school really wanting to know more about Puerto Rico, which seems ironic that you go to law school at the University of Texas, right, and not, you know, I don't know, somewhere else in the northeast, for example.

Speaker 2: 4:01

But I just had something that I was questioning and I couldn't quite tell you at the time when it was. I just knew that, like knowing, understanding the law was going to help me understand something about Puerto Rico that I couldn't understand otherwise. So that's why I went to law school and in my second year of law school, third year, I took a seminar. That was this cool class. It was all about democracy and accountability and the rule of law really mostly focused on Latin America at a time when truth and reconciliation committees are really sort of taking off. And there was this real question about accountability to the citizenry, especially for atrocities in the past right, the dictatorship in Chile, these kinds of large social justice questions. And for me what came to mind is how, if ever, is the US government accountable to Puerto Ricans, puerto Rico, given that the citizens in Puerto Rico don't have representation of the federal government?

Speaker 2: 4:55

So that was really, for me, the motivating question right and I remember going to my professor, who was an expert in NAFTA law and in kind of trade law between the US and Central America, and I go to her and I say to her this is this is a question that I have, and I think the kind of research paper that I want to do is about the federal death penalty in Puerto Rico. So really thinking about why is it acceptable to impose a federal death penalty in Puerto Rico, given that Puerto Ricans lack representation and that it is explicitly barred in the local constitution, right in the Puerto Rico Constitution, which is not unlike some states, however, that question of accountability is different right for for Puerto Rico, because of this lack of representation. So I felt like there was something there and something that merited investigation, and my professor was incredibly dismissive of it and she just was like how is Puerto Rico different from the 50 states? Why does this matter? And really, really pissed me off. To be quite frank, she really just made me really angry because I was like how can you be an expert in Latin America and not know that this is a live and urgent question?

Speaker 2: 6:05

And so you know, in some ways I have heard a thing, because she's the motivation for what has become this book and kind of my life's work, right, and and and also for my understanding that this has to be explained and explained and re explained and, as you said, we've been explaining it for decades and over a century and yet it's still, you know, it still needs explanation, which is, of course, very frustrating, but also, you know, it sort of become my, my life's mission, right, is like this this is, this is the work that I've signed up to do.

Speaker 2: 6:37

So the book is really grew out of those questions and I was first asking as a second year law student that seemed to be dismissed, right, that people just were like this doesn't matter, this isn't interesting, these are not the questions you should be asking, right, and is Puerto Rico, even Latin America? Right, that was the other like underlying so so yeah, so that's where, that's where I'm coming from, as a long way of saying that, that's where I come from geographically and that's kind of where I'm coming from intellectually.

Speaker 1: 7:03

It's always funny to me how many people don't necessarily realize that they were spiteful inspirations for our work sometimes, because I definitely have some of those stories. But I think when we think about things full circle it's definitely more so, for the benefit of our people and the region that I asked for especially so. I'm really excited to read your book when it comes out in June, and hopefully this brief intro will definitely inspire a lot of our listeners to definitely check it out next year when it comes out as well. And so I know that you know there are different ways of classifying Puerto Rico. We've said it's a colony.

Speaker 1: 7:44

Obviously your professor had asked you know how? Is it not different from the 50 states? And it definitely is. You know want to make that obviously clear. But in a political sense and legal sense it is defined as an insular or unincorporated territory. Right, we can call it a colony, of course, but that is the legal framing, that's how the US defines it. And so you know, as a way to sort of dive into our conversation today, describe what that insular, unincorporated territory means and how that really has set the stage for Puerto Rico's political relations with the US.

Speaker 2: 8:25

Yes, absolutely. So. You're right, puerto Rico is an unincorporated territory and it has been that since 1901. That's when that designation was created for Puerto Rico specifically though of course Guam carries that designation as well and so to the US Virgin Islands. So the notion of the unincorporated territory is really what we call a legal fiction. Right, this is a moment of kind of creating this thing out of, in some way, that of nothing. There is no unincorporated territory in the US Constitution. Right, there wasn't an unincorporated territory in the US sort of legal precedent in the US legal canon before 1901.

Speaker 2: 9:07

And so this was sort of created as a way of distinguishing Puerto Rico and the other insular territories against the other islands that were acquired islands and archipelagos, right, acquired by the US government after the war 1898 with Spain and the Philippines, cuba, right. And so that moment created this kind of question mark for the US, for the US government as a kind of governmental entity, but also for Americans, right. So I like to sort of highlight for my students, especially when I teach this, that this was kind of a morally defining moment for the US, where the US populace was kind of asking themselves wait a minute, are we going to be a colonial master, like, weren't we as a government, as a nation? Right, isn't our history one of breaking free of colonialism, right? And so what does it mean for us as a nation, for our sort of national view of ourselves, right, if we become a colonial master? And so there are, of course, famously, you know, richard Kipling's the White Man's burden was was written in response to this querying right the US populace was doing. And it's Kipling's sort of calling for the US government and patriots to take up the burden of colonialism right, to sort of walk into their rightful duty of becoming colonial masters in the face of this sort of uncertainty. And I say uncertainty because there was a lot of debate, but also, you know, a very clear notion within the US government that we want to retain these territories. Right, we might not want to be called an empire and we might not want to be called colonial masters, but we want, and we feel like we should, and are also like it's, it's our right to expand in this way.

Speaker 2: 11:00

And of course, the major prize in that conflict was the Philippines right, the sort of opening up of of the east to an Asia, to the US, right, which at the time Britain had a lock on that region, and so the US really wanted entry. So the Philippines, and then and then Cuba. Cuba was the other prize, right, largest of the islands of the Caribbean, most sort of lucrative sugar exporter at that time in the Caribbean, and Puerto Rico, to a lesser extent, was was sort of a okay, sure, we'll take it right. It becomes strategically very important, and there was already a kind of view to like militarily, geographically, puerto Rico would provide some cover for the Panama Canal, which was already kind of in mind to be created. So, again, right, thinking kind of strategically, how do we keep these territories under our control, reap the economic benefits? Right, be able to sort of exploit the economic possibilities within them, but also contend with our own legal system?

Speaker 2: 12:07

Right, and the fact that the US had never expanded overseas, right, and so this unincorporated territory was a, was a creation of this moment, as a way to allow the United States to retain the islands archipelago that had acquired, but without extending the protections of the Constitution, right, without at the time granting citizenship to the people who lived in these places, or really full, full rights.

Speaker 2: 12:30

Right, it was a kind of like wait and see, right, like what, what is going to develop in these places and it allowed for that kind of flexibility of the US government to say, okay, we're allowed to kind of expand here and we can kind of start our colonial project and we don't have to kind of fulfill all of the duties of the Constitution in these places, which of course then allows for the US government to behave in ways that it would not necessarily be able to behave like in the states. Right, if people don't have all of the right to the Constitution right, then you can sort of engage differently than you can in a place where the Constitution applies fully. So that was the kind of solution in 1901.

Speaker 1: 13:14

And so we're moving temporally.

Speaker 1: 13:17

While Puerto Ricans eventually do get US citizenship, there are still several rights that they don't have, for instance, not being able to vote in presidential elections, not being able to elect their own senators and representatives, to vote in several other things, right, and so just wanting to sort of uplift that point as well as we're getting into this conversation about colonialism and US law in particular, so something that I really find, I don't want to say, interesting, but you know, in the sense of you know, thinking in retrospect how this sort of term, the unincorporated territory, was really used and planned to just sort of be a catch for all, I guess in a sense in the last century, not even really understanding the implications for Puerto Rico were more than a century later, right.

Speaker 1: 14:13

It is, though, steep in this long history of US law that really has been based on race, on other similar practices that may not necessarily be defined as colonialism, but are definitely in the same shape of, you know, white supremacy, racial hierarchies and these, these other things, especially in the 19th and 20th century, and especially I'm thinking here Dred Scott, which I know obviously comes up in your work especially, but could you share briefly that sort of like lineage of cases, that trajectory of what some of those legal decisions are and how they created what you title in your book states of exception, and then you know how Puerto Rico also fits into that.

Speaker 2: 14:59

Absolutely. Thank you for that question and that reminder, right? So what I didn't say is that the unincorporated territory, the legal fiction, the category, is created because of the people who live in the insular territories, right? So it's not just oh, these places are far away and we don't want to sort of make them part of the US, because that's what the unincorporated territory did, right it, it maintained it as something belonging to the US but not a part of the US. And the reason for that categorization is because the people who lived in those places were black and Asian and mixed race right, and spoke different languages and and were not Protestant right, they were Catholics by and large. In the case of Guam, there were indigenous Guamis, chamorro peoples, right, and in the case of the Philippines, right. So these people are others and we have to treat them as other, and so the unincorporated territory was a means to do that.

Speaker 2: 16:00

And the book, the first part of the book, is called the tort illegal genealogy of racial exclusion, and it's really thinking about Puerto Rico sitting within a legal genealogy and one that is concerned with how to create spaces of exclusion for racial others or, as I call it, in the direst of all, those people who are the ones who are the most desirable right, the, these groups of people that the US government really would rather not incorporate, would rather not extend full rights to, and of course, the first of those peoples are Native Americans, right? So the book begins with an exploration of the martial trilogy, which is a group of legal cases, three legal cases decided fairly early in the American sort of republic, under the, the leadership of the government. And this is a moment when the, when the Supreme Court, is kind of carving out a role for itself and one of the, the things that sort of early rises up, right, questions that come up is Well, how is the US government sort of contending with Native American rights, right, native American sovereignty, native American claims to land, what's going to be the relationship? And that's what these cases sort of do. They're the first sort of explorations of the court trying to carve out a rule for itself and really delineate how the US is going to treat Native Americans and Native American sovereignty in particular. And so the cases they're fascinating. Fascinating cases, as you might imagine, and also enraging, as you also could imagine. Right, but collectively they stand for this notion that Congress has plenary power over Native affairs and so they have absolute power, and also that the decisions of Congress with respect to Native Americans are really not subject to the judicial review, so that it carves out a really large power for Congress over Native affairs. And so these three cases are sort of the bedrock of Indian law. You know other cases stem from it and sort of have tried to nuance it. But generally scholars understand that what these cases did was set up this very large power that the federal government has over Native affairs and very much limited Native sovereignty right and Native title and basically Native power. So I really look at that in part for a couple of reasons.

Speaker 2: 18:24

One, because they're cited in these early legal precedents that create the unincorporated territory and in particular this one case down through Bidwell which is the sort of infamous case that creates the category of unincorporated territory. It's where you get that sort of famous phrase for in a domestic sense, with respect to Puerto Rico, and in that case you see the Supreme Court sort of I like to describe it as tying themselves in knots to try to maintain Puerto Rico and the other insular territories as something not a part of the US but at that point kind of trying to reach for like, well, how do we do this? Because it's clear that those precedents aren't there right. So we have to kind of try to reach for these legal arguments and kind of make something out of nothing in order to make this notion of an unincorporated territory happen. And they call on the martial trilogy and they cite to it and they use it as a way of talking about the American Empire right and the fact that the US has a right there is a right to an American Empire and also for these sorts of propositions about plenary power and sort of power that Congress has over territory.

Speaker 2: 19:39

So I start the book with those cases and the comparison between the unincorporated territories and native reservations, native sovereignty, have been made for years by legal scholars and historians. So that's not new necessarily, but I always think it merits a real sort of close read. And so part of what I think is the kind of innovation of the book is that it really tries to be very careful about close reading these cases together. So beginning with the martial trilogy and then from there it goes to a discussion of Dred Scott v Sanford, which is a case that again is also very closely linked to Downs v Bidwell, but too few scholars make the connection right. So I think again, another innovation of the book is close reading these cases collectively and also being very concerted about tying the legal relationship that Puerto Rico has with the United States with that that came before of black Americans. Right, and really thinking about the way that black exclusion made way for Puerto Rico's exclusion right, which I see too few scholars doing that work right, really thinking collectively about these kinds of cases as a way of thinking about the way that races always played a role in this type of exclusionary legal mechanism. And so Dred Scott is also a precedent that is cited in Downs v Bidwell and it is most known, of course, in our history of anonymous legal cases, right as this place where Justice Taney famously said that blacks this is a quote, right, blacks have no rights that the white man is meant to respect and that they must lawfully be reduced to slavery. And so the other sort of part of that case that we talk about less is about territoriality, right. So there was the question of black American rights, right, like where Dred Scott is a citizen. That was one of the questions that was being asked and the court decides no, he's not a citizen and he can never be a citizen because the Constitution basically was not made for him. That's one part of the case. The other part of the case is about the application of the Bill of Rights and the Constitution and the territories, and that's the part that's most relevant to Puerto Rico's early 19th century history. Right, that is cited in this Downs case In Dred Scott.

Speaker 2: 22:12

The court is again sort of grappling with creating something that doesn't exactly exist, but because it's so interested in maintaining one, black exclusion and two, insisting that the Missouri Compromise, which banned slavery and the territories, was unconstitution, right. So there, you really see, taney in particular wants this outcome. He wants to be able to say that the Missouri Compromise is unconstitutional and that slavery cannot be banned in the territories. And so you see him sort of create this decision right, and it's why the decision was so reviled, because it was so clear to people that he and the other justices that agreed with him were just sort of twisting things to get the outcome that they wanted.

Speaker 2: 22:59

But what he does say in there, lost in all of that right hate and terribleness, is what he says is actually about Congress's plenary power in the territories and westward expansion, which was that Congress could not acquire territory to hold it indefinitely. It had to be acquired to be put on a path to statehood. So that part of the decision of course gets lost, because it's not what we remember, right. We remember of course the exclusion right and the kind of the pronouncements on slavery. But what he does lay out is this kind of doctrine about how the US is going to go about expanding and acquiring territories and he also says that the Bill of Rights will apply in the territories. That's kind of a no-brainer. The Bill of Rights applies and when, such time as the territory is ready, it will be admitted as a state. We can understand that when the territory is ready meant white settlement, right, that they're sort of opening up the possibility that and this says so specifically in the case, like you know, these lands are mostly occupied by like random bans, and this is again these are quotes random bans of Indians, right. So basically, when enough white settlement is present in the territories, then the state will be ready to enter the US.

Speaker 2: 24:17

That's the part that troubled the court in 1901 with Downfield-Bidwell, because if we have to make all territory that we acquire a state, then that means these territories that we've just acquired in 1898, have to also get the Bill of Rights extended to them, they have to get the Constitution extended to them and they must be put on a path to statehood.

Speaker 2: 24:41

And those three things are things that people did not want to do and the US government did not want to do in the early 20th century. Right, they did not want to make these people a part of the US, they did not want to extend full rights to them and they wanted a way to not be forced to make these territory states. Hence the unincorporated territory is born. But you can really trace the kind of logics that allow for it back through Dred Scott and the Marshall Trilogy and what I call the American state of exception, the kind of reading of the Constitution as allowing for these spaces where rights either do not exist in the case of Native reservations or plantations right, or exist in very, very limited ways. And that's the argument in the book, that through this legal history we can see how Puerto Rico in the early 20th century then is made into another one of these lacunae of law. And then the second half of the book is asking well, what happens in the lacunae right Now that they've made this space? What is it possible in that space?

Speaker 1: 25:45

You know many of our listeners might be familiar with things I remember learning about Margaret Sanger and birth control and then, not necessarily when I first heard about it but you know, down the line in my studies, learning that birth control was initially tested in Puerto Rico, leaving countless women, you know, sterilized and all of these things. There is a moment in that 20th century, post this decision, where Puerto Rico just kind of becomes a hotbed for testing and just exploration in a way that legally couldn't have been done for the US states right, because of this status as an unincorporated territory. And so could you share a little bit about this post Downs v Bedwell moment and just really clarify what the decision allowed for in the immediate aftermath?

Speaker 2: 26:45

Sure, I like to start with this moment in 1900, where Puerto Rico experiences what, at that point, and really until Hurricane Maria, was the worst hurricane the archipelago had ever experienced, which was Hurricane San Citiaco. And this hurricane sort of followed a very similar trajectory to Hurricane Maria, kind of plowed through the middle of the archipelago, through the central mountain region, devastated the central mountain region, which at the time was where the plantation, the coffee plantation for, and again before the US sort of really gets its sort of economic engine going, in Puerto Rico coffee was the primary export crop. So this is at a time when coffee is still very important, and so coffee is devastated. Many, many people lose their lives, several thousand people lose their lives, hundreds of thousands of people are displaced. And so there's this great story of this military doctor named Bailey K Ashford. And if you've ever been to San Juan, the main road that runs through El Condado, part of San Juan, which is like the Ritzi area, where all the hotels are and the nightlife is, that street is called Ashford and it's named for Bailey K Ashford. There's also, I think, a hospital that still bears his name.

Speaker 2: 28:05

So very important sort of historical figure. And so he's, this military doctor stationed in Ponce, puerto Rico, and after the hurricane, you know, sort of people start coming down from the mountains, people who are like homeless, now right and looking for help, and many of them are rural peasants who had worked in the coffee plantations. And Ashford writes in his journal. He starts sort of seeing these folks and he's like they all looked really like sickly and malnutrition and he's like why they have anemia? Why do they have anemia? Like oh, so many Puerto Ricans have anemia? And so he starts ordering his people to feed these, these folks that are arriving. Feed them meat, feed them like red meat and a very sort of American diet, right like a meat and potatoes type of diet, and he's like they need iron. You know they're all sick and I like they get sicker, right, they start like vomiting, right like this meat that he's giving them and this, like American fair, is not sitting well with them and they are getting sicker and instead they're like please give us what we normally eat rice and beans and codfish. That's what we eat, that's good for us, give it to us. And so of course, he's writing with disdain like I had to give them what they wanted. Right, they were. They were clamoring for the salted codfish, and when I gave it to them they all started purring like kittens.

Speaker 2: 29:26

He writes this in his journal, right, but they didn't get any better, right. And so he is very frustrated, and that's clear in his in his memoir or his biography, that these folks, their health is not improving and he can't figure out why. And so after a time and many of them are dying he starts experimenting on them and he starts sort of taking their feces and he starts taking their blood and he starts taking their urine and you know, just like whatever, he's performing medical experiments on them and he realizes that the reason that they're sick is not because they have anemia, or they do have anemia, but the reason they have anemia is because they all suffer from hookworm infestation. And hookworm was a disease that was rampant in the US South, all over the Caribbean, latin America and Asia, and it was a question of poor sanitation and shoelessness. So rural peasants who didn't wear shoes or only wore shoes on limited occasions when they had to dress nicely right, they were walking around barefoot and they were getting hookworm which hooks onto the bottom of the feet, enters the body through the feet, and so he comes to this and he starts kind of thinking like, oh, how do I cure this? And he creates all these different purges and elixirs and medical concoctions and he is giving it to these folks and sort of seeing how they respond. And in that process he does come up with a cure for hookworm, which is why he's so important, right.

Speaker 2: 30:55

Why his name persists is he is responsible for curing hookworm and the experiments that led to those discoveries in Puerto Rico are then exported all over the world and he gets funding from the Rockefeller Foundation and they help found what becomes the Institute of Tropical Medicine, which is basically the first of the University of Puerto Rico medical school. And those experiments literally are sent all over the world, to India, to Brazil, to parts of the US South, all over the US Empire. And the impulse right to experiment with these folks, it comes from a place of like oh, I want to solve a problem, these folks need medical intervention, right, I'm assuming? And he doesn't tell us that he's asking them for consent, and this is a time when most doctors in this position would not be asking for consent, right? So I think it's a very fair and safe historical assumption to make, right, that he was not acquiring consent from these patients before he was performing these experiments.

Speaker 2: 32:00

And so, even though you know the overall good of resolving and knowing why they were sick and solving the problem of infestation worldwide is absolutely a medical good, the way that we get there is by literally experimenting on people's bodies, puerto Rican's bodies, right, and we know through the history of US medical experimentation, certainly on black women's bodies, black men's bodies, and you know, and just the marginalized peoples in general, right, that that is a very fraught sort of history. So it begins, the kind of tropical medicine, in that way begins in Puerto Rico in that moment of experimentation and I like that vignette because I think it speaks to a colonial mindset, right, that would concern itself very little with the people that are involved in the experiments and be much more concerned with the sort of outcome, right, and be able to justify whatever came in between with the outcome, right. And so that kind of period sees these sorts of medical experimentations which you also mentioned, the birth control experiments which begin early, right, the kind of women's sterilization that we are very familiar with from especially the documentary La Pera Sion, right, which is probably the most kind of visceral telling of that story, excellent documentary that focuses on the kind of 1960s, 1970s moment. But this begins very early on, and so we know that history. I learned when I was in grad school and I found that fascinating too, that Agent Orange was first tested in Puerto Rico as well, right in a djunke in the rainforest. So a history of using these technologies of you know birth control technologies and sterilization technologies, but also you know weaponry right, and of course the US's sort of military campaigns all over Puerto Rico, in particular in Vieques and Culebra, are also well known. Right, the experimenting with military technologies.

Speaker 2: 33:58

So my argument is that the downs and the creation of this unincorporated territory facilitates Puerto Rico's becoming an experimental station at large. Right. So the experimental stations that were created in that early 20th century moment dealt with really everything right. There was like experimental stations that dealt with nutrition, where they tried to sort of figure out what kind of nutrition was best suited right so how to get more milk, for example, into children in Puerto Rico, and they would set up these little stations in the rural areas where women could come, especially mothers who had children. Right, could come and get milk for their children. So that kind of thing was like milk was not, not that it wasn't available in Puerto Rico, but it wasn't something that everyone had access to and it wasn't a part of the diet, right.

Speaker 2: 34:46

So these sort of processes of in part bringing US commodities to Puerto Rico, food commodities and other technologies, to try to facilitate a consumer, right, consumer in all these different kinds of ways, as well as experimenting with agriculture and with military technologies and medical technologies, public health technologies, right, all of these sorts of projects that then could be put to use in other places, right. And Puerto Rico does become a kind of showcase for the US in the Americas. Right. It can say look what we've done in Puerto Rico, that this kind of agricultural technology works in Puerto Rico, it could work in Colombia, it could work in wherever. Right. And that's documented as well. That these experiments in some ways facilitate an attempt by the US government to kind of be more involved in Latin America, right, or have a sort of an alternative entry point.

Speaker 2: 35:46

And so for me, to my kind of reading of it, downs makes way for this right. This is a kind of part and parcel colonial impulse to experiment, to remake right, to redesign society. So the kind of milk goes to that, I think the nutrition goes to that right, like we are going to reorient these people's diet because we think it's better, right, that they have milk and dairy and red meat and whatever. But also because then they'll buy it from us, right, and we'll sell it to them and we'll kind of create the market that we need for these things too. So there's always this dual purpose, right.

Speaker 2: 36:24

On the one hand it's like, oh, these poor folks don't they need help? Right, we should educate them, we should help them. They're sick, we need to cure their sickness. But also, if we create the society that we want, then we can sell it what we want. We can also put it to work in the ways that we want. So one of the points that I make in the book is that curing hookworm and creating a healthy society also might creating a healthy workforce, right. So it wasn't just like, oh, these people are sick and they need to be healthy. It's like, yes, they are sick and we need them to be healthy so that they can work, because if they're sick and weak, they can't cut cane in the ways that we need them to. Right, and to me, to my reading, to my thinking, it's really downs its look at way to this kind of reorientation.

Speaker 1: 37:15

And, to that point, creating this workforce, as you mentioned, creating this population of people who, to our earlier point, still are not getting all of the basic human rights as outlined in the US Constitution. So the US government will allow for them to be curative hookworm, and here's the milk and the potatoes and the red meat, but you're not full US citizens at that time, but also, as we go on and through time, are not able to vote for your own members of Congress and all of these more problematic lines that I think really showcase the bedrock of colonialism. Right, the US government and the legal system allowing to pick and choose, really, what they are going to bestow upon you, while also still being allowed to extract so many resources and really glorify their abilities in the world. Right To be able to do certain things, all based off the experimentation and the abuses of colonialism.

Speaker 1: 38:21

You bring up Hurricane Maria, of course, right, I don't think we can have a conversation about Puerto Rico, especially one that goes into more contemporary times, without really analyzing that the challenges of Hurricane Maria and its aftermath also, as you point to, stemming toward this longer history of racial exclusion, of the challenges of being an unincorporated territory, and so, as we contend with President Puerto Rico and really understanding its issues, whether that's public law 600 and all of the slew of legal decisions that really thwart the rights of Puerto Rican citizens. While many of our listeners might be more familiar with some of those recent challenges, like the aftermath of Hurricane Maria, could you share, especially related to natural disasters, what have been some of the challenges in the 21st century to Puerto Rico's legal status, especially in its relations with the US?

Speaker 2: 40:05

Yeah, so one of the, I think, the key things to remember. And so you point rightly that you know, Puerto Rico citizenship status changes, right, it's sort of legal designation in some ways changes. Right, in the mid 20th century Puerto Rico becomes the Commonwealth of Puerto Rico, the Estado Libre Associado, which you know. There are many, many books written about the ELA Estado Libre Associado, the ELA report, and I have a whole chapter on it where I'm really asking the question what was this thing, right? What was this moment in the mid 20th century? What was it making? What did it do?

Speaker 2: 40:42

And there was a real question then about whether the ELA was really decolonizing Puerto Rico. Right, and I say this in scare quotes right, like whether decolonizing Puerto Rico, because there were arguments that it was right. The proponents of the ELA were really sort of pushing that this was decolonization because Puerto Rico was getting a local government and the ability to sort of elect its own leaders, its own local leaders and, you know, its own governor and really sort of creating some local autonomy, right, so autonomy was the big buzzword. And of course the mid 20th century is the kind of moment of self-determination, right, it's the I like to situate Puerto Rico's moment of creating the ELA within a larger sort of post World War II moment where the global South is decolonizing right, other parts of the Caribbean quickly follow, parts of Africa and Asia are decolonizing right. So this is a moment where post World War II the kind of global reorientation of the world and it's aligning along sort of you know communist USSR and you know liberal democracy, the US, and so this is the moment that the ELA has created and the language and the rhetoric of self-determination, of autonomy, become very important right.

Speaker 2: 42:06

And I argue that they are sort of abused right, misused and abused as a way of obfuscating what was really happening when the ELA was created, which was that Puerto Rico was getting a local government but that Downs v Bidwell and the unincorporated territory were not being addressed at all. And they tried the framers of the Puerto Rico constitution, who were essentially those who lobbied and sort of negotiated for the ELA in Congress, some of them did try to push that unincorporated category would be changed right, that Puerto Rico would either be incorporated or that something was changing. And Congress is very clear that they were not willing to make those changes right, that their plenary power had to remain in place. The Puerto Rico would be allowed to sort of create this local government, but that plenary power, ie the power that Congress has of a Puerto Rico, would not be displaced. And so if that power is not displaced, then Puerto Rico remains a colony. And if it's not overturned right, if Downs isn't overturned then Puerto Rico remains an unincorporated territory.

Speaker 2: 43:13

So then the question was well then, what did the ELA do? It did allow for a local government, and it allowed for that local government to pass laws that facilitated the industrialization of Puerto Rico and with it, the sort of creation of jobs of Puerto Rico. But, as I mentioned at the very beginning when I was talking about my family, that industrialization, that modernization, that sort of moving out of rural poverty and into a kind of industrialized middle class wealth, liberal wealth, was premised on tax exemptions. It was premised on inviting rich corporations to set up shop in Puerto Rico, bring their industry and then let Puerto Rico provide cheap labor, right, and that is how the Puerto Rican economy was funded for the latter half of the 20th century. Those tax incentives were sort of codified in US tax law, and in the 1990s they were basically rolled back, and when they were rolled back there was like a 10 year phase out and they were like okay, in 10 years the last of the tax exemptions will be done, and that phase out deadline was 2006. And what we see is that when that happens, the Puerto Rican economy sort of craters and the thinking was we'll give it a 10 year phase out for other things to be put into place, other policies, ways of attracting business. But that didn't happen, and so what we saw was business fleeing, right, those businesses that were losing their tax exemptions, then finding that they could go to Asia and other parts of Latin America for cheaper labor. Many of them literally went from Puerto Rico to the Dominican Republic just right across the street, right, because it was cheaper to go there and nothing coming and replacing it. Right, so that when Puerto Rico enters the sort of great recession that we experienced in the US mainland, its economy was already in a recession, and so that recession was even more devastating for Puerto Rico than it was for us. And that's where you see the kind of beginning of what we now know was a sort of debt catastrophe, right, and the other sort of key part of this weird little.

Speaker 2: 45:34

You know all the many quirks that exist in Puerto Rico and again you can sort of think, relate this back to the unincorporated territory is that the kind of regulatory controls that exist for banks, financial institutions, in the United States mainland don't apply in Puerto Rico, so that banks operating in Puerto Rico could offer crazy kind of deals, crazy incentives, crazy kind of negotiations and clauses in loans that we would not have been able to see in the US. Right, there were sort of bankers who saw it as a kind of frontier. Right, you can kind of experiment, again a financial experimentation happening in Puerto Rico. And again, because at some point Congress decided you know the SEC and the kind of federal regulations that control banks, for some reason they don't have to apply in Puerto Rico. That's one of the powers that Congress maintains, right, with its plenary power and the fact that Puerto Rico is an unincorporated territory, that it gets to decide which provisions of the US laws will apply to Puerto Rico and which do not, and they only have to have a rational basis for excluding Puerto Rico. And if Congress can kind of have a you know what seems like a rational reason, then the US Supreme Court will uphold that. So anyways, that's what's happening as Puerto Rico enters the 21st century and how we are still seeing the ramifications.

Speaker 2: 47:01

Just one example, but a huge one. Right, because we have seen what the debt crisis has caused in Puerto Rico and that is the 21st century legacy of essentially a 19th century legal decision. Right, because, even though it's happening in 1901, right, the kind of mentality of it, the ethics of it, the legal reasoning of it is sort of that late 19th century. You know, social Darwinian manifest destiny. You know white supremacist notion and even though and one of the points that I make in the book is that you know, we reject that thinking now, right, we reject this kind of racist sort of underpinnings of our laws. We, you know, we rejected Threads Scott and we eventually rejected, you know, plus to be Ferguson and separate but equal.

Speaker 2: 47:50

But that law from 1901 continues to be the reason that Puerto Rico can be treated differently and you cannot sort of disentangle the racism that was built into that law and that case, even if we say, well, you know, it's a rational basis, congress has a rational basis. Like you know, money is always a rational basis. You can always justify anything with like, oh, it costs too much to do that in Puerto Rico, or Puerto Ricans quote unquote don't pay federal taxes. So it's justified that we exclude them, right. But if we want to really think about where the birth of the exclusion comes from, it's always this racist case from 1901 where Puerto Ricans are seen as not capable, as too Catholic, too black, too brown, as quote unquote Mongrels. Right, because that was a common designation of the day. Right, like these folks are Mongrels. So that's the point is that this decision continues to significantly impact what is possible for Puerto Ricans and how they relate to the United States.

Speaker 1: 48:57

And I think in that point even you know, provides further evidence for the US's response in the aftermath of like, of Hurricane Maria for instance, right In the way that if it was a state, perhaps the US government would have responded much more quickly. The length of time that Puerto Rico spent in darkness, you know, the flooding, just the exasperating conditions that they really faced and have continued to face since, are in part due to this understanding of Puerto Rico as an unincorporated territory as opposed to a state of the United States.

Speaker 2: 49:35

I just was gonna add that with that. I think what is important is there's the like legal categorization, but then what that sort of signals to a US populace as well. Right, because part of it still even all of this time later, is this question of is Puerto Rico, even the US, should we taxpayers here in the US be funding aid to these people over there? Right, and that was a point that Donald Trump pushed heavily on. Right, like these people are not worthy of our aid. Right, like they are corrupt over there.

Speaker 2: 50:11

That narrative is persistent. Right, that Puerto Ricans are something else, that Puerto Rico is something else. It's not really us, it's not us the mainland, it's not us Americans, and so we don't have to respond in the same way. And the stark example, of course, is Hurricane Harvey, which happened right before Hurricane Maria. And I live in Texas, a family in Houston, and even though it is still true that there are communities in Houston, especially poor black and brown communities, that have not gotten the aid that they should have gotten immediately.

Speaker 2: 50:42

Right, there was much quicker action in Houston and in Florida than there was in Puerto Rico, and that was stark. People could see it right. But the underlying kind of logic is Puerto Rico is not really the US, so you know we don't have to respond. In the same way, it's like nice of us to respond right Like we're good people so we should send them aid, but we don't have to because they're not really us, and that's a logic that persists. And I would argue that Downs is part of that right Instrumentalizes what's already kind of a part of a logic, of a racist logic towards a common sense, towards the Caribbean, towards Puerto Rico.

Speaker 1: 51:22

That'll bring me to one more question, but before we get there, I have to, of course, ask my favorite question of all of the podcast episodes what are some of your favorite examples of a way that this history of Puerto Rico and the law show up in popular culture?

Speaker 2: 51:39

Thank you. I'm thinking a lot about this question. There are so many great examples especially in the last post, maria of work that's really thinking about, like what Maria was, what Puerto Rico was experiencing, right, the debt crisis before and what's happening now. So your question about the law in specific, in particular, it's hard to kind of for me to say this is explicitly sort of grappling with law, right, but. But what is true of Puerto Rico is that all of these dynamics are undergirded by this law, right, and that's the argument they make. Is it downs and absolutely everything, whether we know what downs is or not, it's touching absolutely every aspect of the way that life is lived in Puerto Rico.

Speaker 2: 52:24

So the pop, sort of pop culture art piece that I've most recently read, that I keep coming back to, is a novel called Velorio by an author, xavier Navarro Aquino, and it came out like 2021, I think, and it's this beautiful, beautiful story of post Maria of Puerto Rico. He talks in an interview about how the opening scene, the opening kind of chapter, is of a young girl whose sister dies in their home due to a mudslide and because of their disconnection, they're up in the mountains. They have to live with her body in their house for weeks before aid can come. Right, they can bury her, and so that's the first chapter of the novel, and he has said that that is actually based on events that happened in the family who had a very similar experience. So it's this like devastating but also and somewhat magical realityist, however you say that Story, but that is also very much grounded in the truth of what many families experienced in Maria and right after, and it tells, like these stories of many different characters who are sort of like moving to converge on this group that's led by this.

Speaker 2: 53:48

He's like a cult leader who has this notion and his name is Ura Yoan, and Ura Yoan, famously, is one of the casicas in Puerto Rico, right. Or like indigenous leaders during the Spanish colonial period, and. But he has this idea that he's going to build a new society and calls it Utopia, right. So it's going to be this utopic and of course, it quickly devolves into this kind of fascistic, like somewhat savage society, right. But it's this beautiful sort of telling of all of these stories and he and what he does is really sort of try to paint a picture the way that Maria impacted many different people, even while it's sort of playing in this kind of brutal, you know, dictator like figure. So that's just.

Speaker 2: 54:39

That's a novel that I loved and I just recently taught a chapter of it to my students, which is why it's like very fresh in my mind. But I also really love there's a lot of great poetry that has come out of Puerto Rico in the last I mean that crisis and Maria right in the past, like 10, 15 years. That is just sort of really really, you know, taking on the sort of power right and really like speaking, speaking to the corruption and the corruption of power in Puerto Rico, both like on the Puerto Rico government level and the US level, right, and also speaking to trauma post Maria and to hope right, speaking to hope and to beauty and to the possibilities, even within this difficult society. So, yeah, I read a lot of poetry. That gives me a lot of a lot of faith.

Speaker 1: 55:34

I have not read that novel so I'll definitely be sure to check it out myself but also link it for our listeners if you're interested in reading as well. So my final question of the episode we've talked a lot about this colonial history and sort of the developments that have gone on post downs, particularly right. What do you think the sort of the colonial future of Puerto Rico looks like? I think, especially amidst conversations about decolonization, there are obviously been discussions about certain islands who are independent becoming republics, if they haven't already. And I think just you know this ongoing dichotomy, as we've talked about, about the law, race and US exceptionalism in a sense pertaining to Puerto Rico and its growth and development. What are sort of your hopes for the future of Puerto Rico and even just its relationship to the rest of the Caribbean as well?

Speaker 2: 56:37

Thank you for that question. So I recently participated in or I guess I'm still technically participating in a study group with the Center for Puerto Rican Studies all around at Hunter College that's focused on decolonization, and so I've spent the last year so working with a group of artists, scholars, journalists. I'm really thinking about this question and what I take hope from what I think is really uplifting, and especially in looking at examples from other, from other islands in the Caribbean and even in the Pacific, is one that that the conversation continues and is urgent and loud, right, I think.

Speaker 2: 57:18

Whenever sometimes people who don't come from either former colonies or places that continue to be colonized, they really think that colonialism is no longer, is no more, right, so it's just like colonialism, what that ended, what are we talking about, right? So I love that that the conversation is very present and it's still very active and is very vocal, and I think that's important right, because battle number one is battling erasure, right, and battling forgetfulness. And then I take a lot of hope to from from young activists, especially in Puerto Rico, the way that they're articulating sovereignty and decolonization, which you know, I think we have been for so long. It's kind of stuck in notions of political sovereignty and political decolonization. And, yes, decolonization takes many shapes, many and many phases, and you know many sort of yeah, many shapes, right? So I think there is the conversation around what kind of political nation or political entity sovereignty decolonization means for Puerto Rico. And then there's the question of what kind of lives do people want to live, which I think is the most pressing one and the one that people I think are more directly contending with and I see much more hope in that because I think we're so mired in the question, especially Puerto Rico right under the kind of rubrics of what's possible seem very limited. We can either be a state, we can either be a free and independent nation, or we can be whatever we are now, maybe better a Commonwealth, or maybe better Commonwealth or just a shitty Commonwealth or whatever. But this is it right? And those conversations are so difficult and protracted and stagnant in some ways that what I find a lot of hope in is people turning away from those conversations in Puerto Rico and saying, like you know what those conversations do not serve us.

Speaker 2: 59:13

We have real concerns, right. Our concerns are, you know, but do we have proper food sovereignty? Do we have, you know, access to land? Do people have access to clean water? You know how do we create the communities that we want to see and build our own sort of community based answers to some of these problems.

Speaker 2: 59:33

You know that can't be everything, unfortunately, because there are, you know, powerful actors that will continue to sort of impede that kind of community level sovereignty, if we want to call it that. But I still think that that's worth fighting for, right, that I think it's worth kind of reinvesting in community and collectively working as community, and I see that happening in Puerto Rico, all over Puerto Rico, and I think that's really, really, really powerful. You know I don't have the answers to the big structural right. I'm still grappling with them. You know, I know what I want in my heart, but you know, is it possible, like is independence possible for Puerto Rico? I don't know what that would look like. It would require us really really considering, like how do we feed ourselves? Right one, I mean, I think what Maria most explicitly showed us is that you know Puerto Rico is absolutely reliant on import, imported food, and so you know how do.

Speaker 2: 1:00:33

How do we feed ourselves is a very important question right and in in in a very you know, climate change impacted area how do we survive, right, how do we have clean water? And those are all questions that are radically urgent. So what I am, what I am heartened by, is that there are the people in community are trying to answer those questions. You know they're trying to resist the sort of larger forces as well, but also saying, like, you know, yes, you know we have to figure out, we would like a change to our political status and, yes, that is important, but also we need clean water and food and to survive. So I think that's beautiful and I'm heartened by it and I will continue to sort of, you know, support those, those efforts and also push for something better. You know, push for the beautiful place that Puerto Rican deserve, right, the sort of ability to decide for themselves that.

Speaker 2: 1:01:31

That we all deserve and to make the future that we want to see.

Speaker 1: 1:01:35

Beautifully said. Thank you so much, dr Jimenez, for joining me for this episode, for sharing a bit about your book and your work and again, I really want to push our listeners to definitely check out making never, never land race and law in the creation of Puerto Rico. When it's out in June, I will add our link in the show notes so you can definitely pre order in advance. Thank you again, dr Menes, and for our listeners, I hope you enjoyed this episode Little more. Thanks for tuning in to Strictly Facts. Visit Strictly Facts Podcastcom for more information from each episode. Follow us at Strictly Facts pod on Instagram and Facebook and at Strictly Facts PD on Twitter.