On February 10, the American Civil Liberties Union and a dozen other civil rights organizations sent a letter to United States Attorney General Merrick Garland asking the Biden administration to repudiate the Insular Cases.
The Insular Cases are a series of 20th century Supreme Court decisions about insular (that is, island) territories the United States took possession of at the end of the 19th century. While the Insular Cases cover a variety of topics, they all agree that the U.S. Constitution does not apply fully in unincorporated territories.
The Insular Cases introduced the idea of an unincorporated territory, and they provide the precedents that make it legal for Congress to make different laws in territories from those that apply in States. Territories’ “fundamental” rights are protected under the Constitution, but the decisions in the Insular Cases do not specify what rights are fundamental.
The opinions written in those cases include statements which modern Americans consider racist and unAmerican. In the opinions written by the justices of the time, people living in the territories are described as “alien” and “uncivilized.”
“The Insular Cases represent a shameful legacy in our Nation’s history,” the letter said.
Alejandro Ortiz, an ACLU lawyer, said, “This is one easy example of systemic racism, where racism has been built into the way the federal government treats people who live in the territories, who are overwhelmingly people of color.”
Although the letter is about the Insular Cases, it was prompted by two other more recent court cases.
United States v. Vaello-Madero
The Vaello-Madero case is currently being considered by the Supreme Court. This case examines the fact that residents of Puerto Rico do not have access to Supplemental Security Income, though all U.S. states and some U.S. territories are covered. SSI is intended for the disabled, elderly, and poor.
The Insular Cases were discussed in the Supreme Court’s examination of this case. Justice Neil Gorsuch asked Deputy Solicitor General Curtis Gannon, who represented the Department of Justice, “Why shouldn’t we just admit that the Insular Cases were incorrectly decided?”
Gannon agreed that the rhetoric of the Insular Cases was “anathema,” but that the Insular Cases “are not at issue in this case.” The Territory Clause, he explained, made it legal for Congress to pass different rules and laws for territories than for States.
The ACLU and the other civil rights groups believe that this case represented a missed opportunity to overturn the cases, which many current observers reject.
Fitisemanu v. United States
Fitisemanu v. United States considers whether people born in American Samoa should be granted U.S. citizenship, as are people born in Puerto Rico.
This case is actually the crux of the complexity of the question of the Insular Cases.
In American Samoa, land ownership is only available to people whose families are descended from indigenous Samoans. People desiring to own land in American Samoa must be able to show that half their heritage is from this ethnic group.
This law, and similar laws in some other territories, would probably be ruled unconstitutional under the U.S. Constitution. It would be the same, legally, as a law saying that only white people could own land in the state of Wisconsin, or that land ownership in Delaware would be open only to those who could prove that half their genetic material came from people who had been slaves. This sort of law is simply not possible in States.
Since the U.S. Constitution only guarantees fundamental rights in territories, however, these laws stand. Known as the “customary system” of land ownership, the traditional way of owning land in essentially exempt from U.S. constitutional law.
If the U.S. Constitution were ruled to apply fully to territories, this traditional system would be threatened. This is a primary reason that American Samoans as a group chose not to become U.S. citizens, and that their leaders do not want to see the Insular Cases overturned. This viewpoint was expressed in a recent Congressional hearing.
Lieutenant Governor Ale from American Samoa said in that hearing, “We are not citizens, and we would like the decision on whether we become citizens to be decided not by a court but by the people of American Samoa and its elected leaders.”
This particular concern is often overlooked by civil rights groups considering the Insular Cases.