The AFF is a double-bind that re-entrenches constitutional logic – either remaining under sovereignty without representation or having that addressed in one single ruling.

Like essentially every other phrase orbiting the matter of these islands’ legal and constitutional status, “the law of the territories” is a phrase without settled legal meaning. Does it refer simply to law as it affects the territories? The unique wrinkles and exceptionalisms reserved to that context? If the Insular Cases are overruled, does a “law of the territories” still exist? Or does the term imply an intent to carve an appreciable and more lasting substantive domain of constitutional law—a field, even, complete with its own enduring treatises or casebooks? To continue our conversation with Indian Country: is a law of the territories more like “Indian law”433 or “tribal law?”434

How one answers this question inevitably carries some view as to how durable the territories’ present limbo is. If one is of the view that Puerto Rico can remain indefinitely under U.S. sovereignty without voting representation in our national government, then conceiving of the law of the territories as a sort of permanent field on par with Indian law might make sense. If one believes that 100 years of citizenship-without-voting and self-government-without-sovereignty can be redressed tomorrow by a single judicial ruling, then it probably shouldn’t, except maybe as a historical device.

I submit that it is useful, for now, to imagine this law of the territories as a concept adjacent and connected to Federal Indian law. While sometimes misapprehended as seeking “extraconstitutional zones,” both gesture at faithful constitutionalism that is sometimes challenged by questions of promise keeping amid the Constitution’s encounter with new subjects through the course of expansion—peoples once thought to be firmly outside the American political project.435 They orbit deeply ingrained but less familiar principles of minority protection that are overshadowed in the constitutional canon by civil-rights frames that delete that expansion from existence.