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By Jessica Faucher*

Arizona v. Navajo Nation where a 5-4 majority ruled that the U.S. government has no affirmative duty to secure water for the Navajo Tribe under its 1868 treaty with the United States. The majority’s decision in Navajo Nation mischaracterizes the Navajo’s claims, applies an unsuitable legal framework, and undermines the trust obligations traditionally held by the federal government toward Indigenous tribes. Located in an arid region with severe water scarcity exacerbated by climate change, the Navajo Nation struggles with inadequate access to water, directly impacting a significant portion of its residents. 

After a critique of the majority opinion, this Note explores Navajo Nation’s detrimental impact on tribal water rights and the federal trust relationship. It provides a historical context of tribal water rights under the Winters doctrine and examines the complex legal framework of the “Law of the River,” detailing how tribes, including the Navajo, were systematically excluded from the Colorado River Compact and other agreements critical to regional water allocation. This backdrop highlights the Navajo Nation’s longstanding struggle for water access and the federal government’s historical role in the crisis. The Court’s decision not only denies meaningful judicial recourse for the Navajo Nation but also signals a concerning shift in the federal trust relationship and tribal water rights. This Note concludes by considering what recourse the Navajo Nation have, and advocates for the judiciary to analyze the scope of the federal government’s trust responsibility in a manner that ensures the United States honors its treaty obligations. 

By Flora Goudappel*

Like the United States, the Kingdom of the Netherlands consists of a main part of the state and several parts with different levels of autonomy in other regions of the world. The organization of the cooperation between the four countries within the Kingdom is laid down in the Statute of the Kingdom. Yet, the position of the six Dutch islands in the Caribbean is hardly present in the curriculums at law schools in the European part of the Kingdom. At least in courses on constitutional law, an introduction to the constitutional law of the Kingdom would be expected. In the curriculums of the law schools in the Dutch Caribbean, the Statute and Kingdom relations play an important role. Moreover, a comparison of the differences and similarities between the systems of the four countries within the Kingdom is an integral part of these curriculums. This shows that awareness of the territorial scope of the state is not equal in all of the Kingdom of the Netherlands. Yet, lessons can be learned from the way this inequality is approached in the different curriculums. 

In this contribution, the focus is on the teaching about the differences between the internal state systems since these are the basis of making students and practitioners aware of the existence of differences and similarities. Thus, other territories can not only be part of the curriculum, but also be used to possibly learn lessons from the differences and similarities. It can be concluded that lessons can be learned from the way the three overseas countries incorporate each other’s systems as well as the main legal system in the teaching of constitutional law. In addition, it is shown that spreading awareness, for example, through publications, helps in bringing the interesting and relevant lessons to be learned into the spotlight. 

By Sígrid Vendrell-Polanco*

This Article delves into the intricacies of the checks and balances system meticulously crafted by the founders of the United States. This framework aims at ensuring a balanced distribution of power among the federal government’s branches. By dissecting historical documents and constitutional debates, this Article explores the checks and balances structure envisioned by the founders, meant to prevent any single entity from usurping overarching authority and safeguard democratic principles to ensure a system of mutual accountability. However, this well-intentioned system reveals its limitations when applied to the U.S. Territories —regions and peoples that have historically been marginalized within the American political discourse. 

The Article systematically examines how the checks and balances system, while robust within the continental United States, has not been fully extended or adapted to the unique political and social contexts of the Territories. Through a detailed analysis of legislative, executive, and judicial interactions—or the lack thereof—with respect to the Territories, we identify significant gaps in representation, governance, and rights. 

Moreover, the Article scrutinizes key legal and constitutional cases that highlight the Territories’ ambiguous status and the federal government’s often unilateral decision-making power. It argues that the current framework fails to provide adequate checks and balances for the Territories, leading to governance that is not fully accountable to its residents. This failure not only undermines the democratic ideals espoused by the founders but also perpetuates a colonial legacy that is increasingly at odds with contemporary principles of self-determination and equality. 

This Article calls for a reevaluation of the checks and balances system in relation to the U.S. Territories. It proposes legal reforms and constitutional amendments aimed at integrating the Territories more fully into the American political fabric, ensuring that the foundational principles of democracy, representation, and accountability are upheld for all U.S. citizens, irrespective of their geographic location. 

By Robert M. Jarvis*

Most law students know little, if anything, about the U.S. territories. Law professors can help increase their students’ knowledge by including references about the territories in their courses. In this Article, the Author explains how he does so in his gambling law course. 

By Dolace McLean*

The Insular Cases continue to attract intellectual attention that excoriates their obvious racism, and rightly so. These cases stubbornly persist as part of constitutional law jurisprudence although they embrace concepts that make the territories separate and unequal under the Constitution—strongly reminiscent of the reasoning in Plessy v. Ferguson. Indeed, the author of the seminal Insular Case of Downes v. Bidwell is Justice Henry Billings Brown, the author of the Plessy decision. Despite their racist legacy, the Insular Cases continue to be good law and the Supreme Court has yet to overrule them. The persistence begs the question of why these cases have not yet met their Brown v. Board of Education takedown. While there is no answer that makes obvious sense, perhaps, there is an answer that is buried in the legal and political subconscious of America. 

This Article argues that there is an imperial imperative that has always been at work in America since its inception. This imperative is made all the more forceful because it has always had the support of the law and legal system. Thus, the concept of “territories” has always existed as an integral part of the framework of the nation from the time the first settler set foot on the North American continent and claimed to have discovered the land. American colonialism has been rationalized in Supreme Court cases that employ a discourse of legal signification. Relying on this discourse, the imperial imperative continues today in court rulings that support lesser constitutional protections, and engage constitutional exceptionalism in territories that are considered foreign even though they are within America’s legal borders. This Article explores legal signification in two cases, Johnson v. M’Intosh and Downes v. Bidwell to uncover the political and legal dynamics that are at play in making and maintaining America’s colonies. 

By Natalie Gomez-Velez*

The separate and unequal status of the U.S. territories under the Insular Cases’ “incorporation doctrine” is indefensible yet largely invisible. Few people in the United States, including lawyers, are aware of the colonialism position of the U.S. territories. This is largely attributable to the lack of coverage in the general law school curriculum. In August 2021, the American Bar Association passed Resolution 300, urging law schools to offer courses on the Insular Cases and the law of U.S. territories. The Report accompanying the Resolution notes: 

“[A]lthough the legal academy played a pivotal role in developing the legal doctrines that the U.S. Supreme Court would adopt in the Insular Cases, for decades America’s territories have been largely absent from the law school curriculum and mainstream legal scholarship. Constitutional law casebooks only make passing references to the Insular Cases, and few courses cover the topic.”

This Article explains the position of the territories under the Insular Cases and more recent Supreme Court cases. It advocates for law school professors to discuss the territories in the constitutional law course, and it provides examples of how some law professors, including the Author, and writers of constitutional law textbooks cover the territories in different ways. Finally, this Article describes the challenges and rewards of including this material in the constitutional law course, particularly at a moment when teaching facts and history related to structural inequality are urgent and under challenge. 

By Joseph T. Gasper II*

 Clinical legal education has become a fundamental component of law school curricula in the United States, shifting from a historically marginalized practice to an essential requirement under American Bar Association standards. Despite this evolution, no law school clinic has been dedicated to addressing the unique legal challenges of U.S. Territories, including Guam, American Samoa, Puerto Rico, the Northern Mariana Islands, and the U.S. Virgin Islands. These territories, often overlooked in legal discourse and policymaking, face complex constitutional, legislative, and socioeconomic issues that merit focused legal attention. 

This Article explores the history of clinical legal education, its gradual acceptance within the legal academy, and the potential for clinics to bridge the legal gap for the Territories. By contextualizing the Territories’ historical struggles—ranging from governance and citizenship issues to systemic economic disadvantages—the Article examines how law school clinics could serve as powerful platforms for advocacy, research, and policy development. Rather than outlining a specific model, it considers the ways in which clinics might engage with territorial issues, offering law students meaningful opportunities for hands-on legal work while advancing social justice and addressing structural inequalities within the U.S. legal system. 

*Abstract drafted with the help of ChatGPT4o. 

By Emmanuel Hiram Arnaud*

 Territorial governance has played a significant role in the development of our constitutional order. From the plenary power doctrine to sanctioning modern-day colonies, territorial expansion has prompted all branches of the federal government to confront tensions between divergent constitutional visions in the name of creating what Chief Justice John Marshall once called the “American Empire.” Yet, issues of territorial governance and expansion are often overlooked in both popular discussions and the law school curriculum. Within the legal academy, the constitutionally sanctioned discrimination of the unincorporated territories finds a natural home in constitutional law. However, I suggest that territorial governance plays a significant role in our understanding of criminal legal systems as well. 

In this Article, I encourage professors of criminal law and procedure to use the territories as examples that challenge and complicate the traditional narrative of their courses. Incorporating the territories requires us to re-imagine or reconstruct essential narratives about our courses, and I provide two examples of how to do so. First, and most relevant to criminal law, study of the territories challenges the proposition that criminal statutes are a genuine democratic expression, as territorial residents lack federal voting rights and, consequently, representative power in creating the federal criminal statutes that apply to them. Second, and most relevant to criminal procedure, the territories require us to reflect on established parts of the class, such as the jury trial right, because Puerto Ricans and American Samoans face overwhelming obstacles to serve on federal juries. Incorporating the territories into the criminal law and procedure curriculum is not only a helpful teaching tool, but it also prompts us to challenge and rethink fundamental aspects of our criminal legal system. 

By Setyo Laksono*

In late 2022, Indonesia passed a New Criminal Code. Supporters of the New Code claim that the Code better reflects Indonesian values and morals. However, many critics are concerned with a number of controversial provisions, including those related to morality such as cohabitation and sexual relationships. The controversy of Indonesia’s New Code provides a case study of the relationship between domestic and international law. While Indonesia, like all other nations, has the right to establish its own legal system, Indonesia is still a party to various international treaties. The Code’s morality provisions may breach these international agreements, specifically those codifying an individual’s right to privacy as a human right 

This Article will discuss the origins of the New Criminal Code and its controversial morality provisions. This Article argues that the morality provisions should be modified or removed because of the risk of discretionary enforcement, corruption, and extortion. Additionally, the Article will discuss the strong international response against the provisions and the provisions’ potential impact on the post-Covid Indonesian economy. Finally, the Article will evaluate the morality provisions’ impact on American citizens traveling to Indonesia and how to best navigate the new rules. 

By Dwyer Arce*

Since Congress granted the Virgin Islands the authority to adopt a constitution in 1978, several drafts have been proposed. Each of them was rejected either by Congress or the voters in the Virgin Islands. In January 2025, the delegates to the Sixth Constitutional Convention of the Virgin Islands will convene to try again—and hopefully succeed where their predecessors did not. 

This Article examines some of the reasons for the inability of the previous constitutional conventions to adopt a constitution and attempts to provide a roadmap for the success of the Sixth Constitutional Convention. This includes the full text of a proposed constitution for consideration by the Sixth Constitutional Convention. This Article advocates for the adoption of this proposed constitution, creating the Commonwealth of the Virgin Islands, a political entity in the model of the Commonwealth of Puerto Rico and the Commonwealth of the Northern Mariana Islands. The concept of a “Commonwealth” as applied to the governments of America’s territories brings with it a long legal history with well-developed legal principles. This will afford the Virgin Islands a level of internal control and autonomy never seen in a century under the American flag. 

The efforts to adopt a constitution for the Virgin Islands, and the continuing legal complexities that accompany its status as a territory, highlights perhaps the most significant hinderance in developing Virgin Islands law—the absence of a law school in the Territory. This Article concludes by examining the negative consequences of the lack of legal education in the Virgin Islands and advocates for the creation of the University of the Virgin Islands School of Law to facilitate the development of constitutional law in the Commonwealth of the Virgin Islands.