Foreign in a Domestic Sense
Mónica Jiménez on Puerto Rico and “Making Never-Never Land”
Don’t let the J.D. fool you: Mónica Jiménez didn’t start her education wanting to study law. As an undergraduate classics major at Yale, many of her friends and classmates knew they had futures in the legal field. But Jiménez — now an assistant professor of African and African diaspora studies at UT Austin — was far more interested in archaeology than in modern-day courts.
Then, in the spring of her junior year, a drive in the mountains of her native Puerto Rico changed her mind.
“In the previous hurricane season there had been a bad storm, and it had done a lot of damage, especially in the central mountain region of Puerto Rico,” she remembers. “My cousin drove me up into the mountains and so many of the roads were still very damaged, dangerously so. I asked my cousin ‘Why aren’t these roads fixed?’ And he was like, ‘Well, you know, la colonia. The colony.’”
It was in that moment, Jiménez says, that something shifted.
“I left that trip and I was like, huh, I know that Puerto Rico is a colony of the U.S., but I don't know what that means,” she says. “This was probably the first moment where — and this is going to sound very woo-woo, but it's true — I had this moment of clarity where I was like, ‘Wow, I care about this place very much and I have these intellectual gifts. I should put them towards understanding this.’ So I went to law school, thinking ‘I don’t know what I’m going to do with my life, but I know I want it to be in service of Puerto Rico, and a law degree will help me do that.’”
Now, years later, and years removed from her time in UT Austin’s law program, Jiménez has built an academic career around studying the intersections of law, race, and empire in Latin America and the Caribbean, and she’s developed an expertise on the question of la colonia. Last year she published a new book on the subject, Making Never-Never Land: Race and Law in the Creation of Puerto Rico, and can trace its history back to those damaged mountain roads and her follow-up questions to her cousin’s answer. What do we mean when we say that Puerto Rico is a colony? What exactly is Puerto Rico’s legal relationship to the U.S.? And how did it become what it is?
In Making Never-Never Land, the pursuit of answers to these and related inquiries carries Jiménez through not only Puerto Rico’s legal history but also that of the U.S. more generally. Over the book’s five chapters she traces the island’s ongoing colonial status — something that strikes many mainland U.S. observers as a relic of a bygone time — back to the United States’s well-known history of legal racial exclusion. Or, to say it another way, she argues la colonia can be understood as the extension of 18th- and 19th-century American understandings of race and law into the present.
Her argument, and the book, begins with the group of U.S. Supreme Court decisions known as the Insular Cases, a little-known area of law that Jiménez first stumbled across while in law school. Decided in the first years of the 20th century, in the immediate aftermath of the Spanish-American War, the Insular Cases were intended to define the United States’ relationship with the island territories it had won from Spain, including Puerto Rico. To do that, Jiménez writes, the court pulled from the body of law created by the decisions, such as the Marshall Trilogy and Dred Scott v. Sandford, that set up the U.S.’s 19th-century legal relationship with its Native and Black inhabitants. In the Insular Cases, the racially exclusionary reasoning of those previous decisions was carried forward and extended to cover a new population — that of Puerto Rico.
While all the Insular Cases were “prosaically racist and eugenic in their logic,” Jiménez writes, one in particular stood out. This was Downes vs. Bidwell, one of the earliest Insular Cases and a throughline for Making Never-Never Land. It was in Downes that the Supreme Court famously described Puerto Rico as “foreign in a domestic sense” — “a nonsensical declaration that continues to flummox and confuse today,” Jiménez writes — and declared the island an “unincorporated territory” of the U.S. And it is Downes, more than any other case, that continues to underpin the United States’ legal relationship with Puerto Rico.
By declaring Puerto Rico an “unincorporated territory,” Downes intentionally excluded Puerto Rico from the path to statehood that was available to other U.S. territories and left the island and its inhabitants under the plenary control of Congress. The decision to legally distinguish and separate Puerto Rico from other U.S. territories was, Jiménez argues, explicitly motivated by anxiety about the fitness of mixed-race, Spanish-speaking Puerto Ricans to be included in the American project. That Downes continues to serve as the foundation and justification for Puerto Rico’s colonial status is, Jiménez says, both a legal and ethical anomaly.
“To me, it’s like, shouldn’t we care that the premise of this whole relationship is based in early 1900s racism?” she says. “Everyone’s okay with this? We’re going to move around like it’s okay?”
Over the hundred-plus years since the Insular Cases were handed down, the legacy of Downes and the liminal status of Puerto Rico has slipped in and out of view as a Puerto Ricans have sought — and lost — greater autonomy, but it’s always been present. In Making Never-Never Land, Jiménez follows Downes’ trail through the U.S.’s experimental attempts to reshape life on the island in the years before World War II and the establishment of the Estado Libre Asociado de Puerto Rico, or the Commonwealth of Puerto Rico, in 1952. The decision then resurfaces in Congress’s response to the island’s debt crisis in 2014-16 and its ongoing consequences. Bringing the book as close to the present as possible was important because Puerto Rico’s recent history has re-enlivened questions about the decision’s continuing influence, Jiménez says.
Underneath those questions — and at the heart of Jiménez’s project — are her concerns for the people whose lives Downes continues to shape. Her goal in writing Making Never-Never Land wasn’t to craft an all-encompassing overview of Puerto Rican legal history, she says. Instead, it was to “write a book where the central thing is this law, but actually it’s thinking about the people of Puerto Rico.”
“If I frame my analysis through law, people take that seriously. If it’s just an analysis about race or culture then it’s easier to dismiss, but if I ground it in law and legal history, then there’s the gravitas of the law,” she says. “But I want to talk about race and I want to talk about politics. The reason I care about law is because it frames the way people live.”
Since Jiménez first started the research that would lead to Making Never-Never Land, the law’s effects on the daily lives of Puerto Ricans have only become more evident. The U.S. reaction to the island’s 2016 debt crisis (which, Jiménez explains, was the direct result of Puerto Rico’s exclusion from financial policies and protections that govern U.S. states), overlapping with the flawed federal response to 2017’s Hurricane Maria, has particularly highlighted Puerto Rico’s less-than relationship to the United States. It’s also made Puerto Rico’s vulnerabilities more visible to outside observers.
That has led to greater awareness of Puerto Rico’s colonial status, Jiménez says, both in the general U.S. populace as well as among legal scholars and journalists. At the same time, interest in the popular culture of Puerto Rico has hit new highs due to Puerto Rican celebrities like Bad Bunny. With this increased visibility comes tension — it can be frustrating, Jiménez says, to encounter mainland academics who approach Puerto Rican history while ignoring the work of Puerto Rican scholars — but also sources of potential change.
“I think we need lots of critical and intellectual minds thinking about what is happening with Puerto Rico and how to move forward, and I think there’s a real moment of possibility to reimagine what politics looks like and how Puerto Ricans live,” Jiménez says. “I’m really trying to focus on how we can make life for people who live in Puerto Rico better and how we can create a more equitable society. How can we create alternative futures for Puerto Rico that aren’t colonial and aren’t mired in these illogical legal structures?”
And while Jiménez fully plans to continue delving into Puerto Rican history while working towards a more equitable future for Puerto Ricans, her next project is a little different.
“I always say I have two obsessions in writing,” she says. “One has been this legal historical question, and the other is the history of the Puerto Rican Nationalist Party, which is the history of resistance to U.S. colonialism. I have a great aunt who was a member of the Nationalist Party and was arrested in 1950 for participating in an uprising against the U.S. government that basically tried to oust it and declare an independent Puerto Rico. She’s someone I’ve heard about all my life but I still don’t feel like I know her, and I’ve always been looking for her in the archive and trying to piece together her story. So I’m writing a biography of her. A little bit of a departure, but in my mind, still very much within the realm of my varied obsessions. It’s still a story about Puerto Rico.”