Supreme Court faces new pressure to reconsider racist ‘Insular Cases’

The American Bar Association on Tuesday passed a unanimous resolution opposing the so-called Insular Cases, a series of Supreme Court decisions that decreed limits to the rights of U.S. citizens in territories based largely on their race. 

The lawyers’ guild’s action is significant as questions rise about whether the Supreme Court could consider the broad issue.  

It also adds pressure on the Biden administration to define its position in a lawsuit brought by American Samoans that could soon be taken up by the Supreme Court. 

The suit would overturn the cases, extending full constitutional protections for the 3.6 million Americans born in territories. The administration must decide by the end of the month whether to weigh in on the suit.  

The Department of Justice declined to comment on the administration’s position.  

Proponents of overturning the Insular Cases say the century-old resolutions are harmful both for their current effects and the overtly racist reasoning behind them. 

Fitisemanu v. United States, the suit at issue, was brought on by U.S. nationals from American Samoa who do not have full U.S. citizenship. 

American Samoans are U.S. nationals but not citizens, preventing them from voting in state and federal elections even when they become residents of a state. Natives of other territories are U.S. citizens who can exercise all constitutional rights provided they first move to a state. 

While it’s not certain the Fitisemanu case will be heard by the Supreme Court, at least two sitting justices have expressed their intent to hear a case against the Insular Cases. 

In a concurring opinion on an 8-1 ruling against the right of Puerto Ricans to receive Supplemental Security Income in May, Justice Neil Gorsuch wrote that “the Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law.” 

And Justice Sonia Sotomayor, the lone vote against the court’s ruling in that case, known as United States v. Vaello-Madero, wrote in her dissent that the Insular Cases “were premised on beliefs both odious and wrong.” 

The Insular Cases essentially grant Congress the power to pick and choose which constitutional rights it confers to residents of the territories, in some cases including natives of the states or the District of Columbia who reside in a territory. 

Those limitations range from Samoa’s citizenship status to implementation of Supreme Court decisions — gay marriage, for example, is not valid in American Samoa despite the Obergefell v. Hodges decision — to limitations on federal social programs, like Medicaid. 

“Some of [the limitations] are concrete and real today, some are like a sword of Damocles hanging over your head,” said Neil Weare, president of Equally American, a civil rights organization that focuses on the rights of territorial residents. 

The cases first came up as the Supreme Court faced legal questions about conferring rights to people in territories acquired by the United States during the Spanish-American War and the partition of Samoa between the United States and Germany in 1899.  

The cases frequently relied on racist views to reach their conclusions.  

In the first of the cases, a 1901 dispute over whether tariffs should be imposed on Puerto Rican imports to New York, Justice Edward Douglass White in a concurring opinion wrote that Puerto Ricans were “an uncivilized race,” “a fierce, savage and restless people” and “absolutely unfit” for U.S. citizenship. 

The differences in which constitutional rights are recognized in each territory are generally based on each individual dependency’s history of U.S. takeover. 

American Samoa became a U.S. territory as a result of a territorial dispute between the United States and Germany in the South Pacific; Puerto Rico and Guam were ceded by Spain after the Spanish-American War; the U.S. Virgin Islands were purchased from Denmark; and the Commonwealth of the Northern Mariana Islands negotiated the conditions of its territorial status as part of the dissolution of the post-World War II Trust Territory of the Pacific Islands. 

Because of those historical differences, some groups within the territories oppose elimination of the Insular Cases. 

An indigenous rights group in the Northern Mariana Islands, for instance, opposes repealing the Insular Cases because its members fear that change could end land ownership restrictions that favor natives of the territory, the Pacific Daily News reported. 

And opposition from the government of American Samoa was a key element in a 10th Circuit Court decision against the plaintiffs in the Fitisemanu case. 

“It is evident that the wishes of the territory’s democratically elected representatives, who remind us that their people have not formed a consensus in favor of American citizenship and urge us not to impose citizenship on an unwilling people from a courthouse thousands of miles away, have not been taken into adequate consideration,” wrote Judge Carlos Lucero, an appointee of former President Clinton, in the 10th Circuit decision. 

Still, the appeals court panel recognized the readily-apparent flaws in the reasoning behind the Insular Cases. 

“They are criticized as amounting to a license for further imperial expansion and having been based at least in part on racist ideology,” wrote Lucero, who called the purpose and reasoning of the Insular Cases “disreputable to modern eyes.” 

But Lucero added that the current implementation of the Insular Cases allows territories with distinct cultural practices to maintain a way of life otherwise incompatible with certain U.S. constitutional principles, and granting birthright citizenship to the plaintiffs would force that same citizenship on other American Samoans who may not desire to be full-fledged U.S. citizens.