Human rights groups are calling on the Biden Administration to reject the Insular Cases, a series of racist U.S. Supreme Court cases from the early 1900s that provide the legal basis for U.S. colonial control over five island nations in the Caribbean and Pacific.
At a press conference on July 12, leaders of Equally American, LatinoJustice PRLDEF, and the American Civil Liberties Union joined residents of U.S. territories to call on the U.S. Justice Department to support a petition urging SCOTUS to reconsider the Insular Cases.
With the Insular Cases, the justices introduced a new legal concept that enabled the United States to control overseas territories while denying equal rights to their inhabitants.
“It is so important that the Supreme Court finally overrule the Insular Cases and squarely reject the colonial framework they established,” Neil Weare, president of Equally American, said in the press conference.
The Insular Cases provide the legal justification for a U.S. colonial empire. Decided in the years after Plessy v. Ferguson (1896), the case in which SCOTUS presented its infamous “separate but equal” doctrine to justify racial segregation in the South, the Insular Cases introduced a comparable “separate and unequal” doctrine for U.S. colonies. Making overtly racist arguments, the justices claimed that inhabitants of U.S. colonies are “savages” who should not become equal members of the country.
With the Insular Cases, the justices introduced a new legal concept that enabled the United States to control overseas territories while denying equal rights to their inhabitants. The justices distinguished between “incorporated” territories where the U.S. Constitution applies in full and “unincorporated” territories where people’s rights are limited. The “incorporated” territories, they determined, were on a pathway to statehood, unlike the “unincorporated” territories, which would not become states. A key factor for this territorial incorporation doctrine, according to the justices, was that the “incorporated” territories were settled by white people while the “unincorporated” territories were not.
“Plainly put, that doctrine was the result of open racism,” Daniel Immerwahr, a historian of the U.S. territories, noted at a hearing on the cases last year.
By relying on these racist legal ideas, the United States has maintained a large overseas empire. Today, the empire includes the five inhabited territories of Guam, American Samoa, Puerto Rico, the Northern Mariana Islands, and the U.S. Virgin Islands, which are populated by 3.5 million people, most of whom are people of color.
The residents of these territories do not have the same rights and privileges as people living in the states. Though Congress has extended U.S. citizenship to four of the territories, with American Samoa being the exception, the residents of all five territories face limitations to their most basic rights. Territorial residents cannot vote for President, lack voting representation in Congress, and endure significant disparities in the social safety net despite the fact that the territories are much poorer than the states.
“It continues to be kind of shocking and really an unacceptable outrage that 3.5 million people living in U.S. territories are subject to a separate and unequal status quo,” U.S. Representative Rashida Tlaib, Democrat of Michigan, remarked at a congressional hearing in May.
Reinforcing the colonial status quo, SCOTUS ruled earlier this year that Congress can continue to deny U.S. citizens in the territories the same benefits as citizens in the states. The Justices refrained from relying on the Insular Cases to make their decision, instead ruling that the Constitution provides Congress with substantial discretion over how to apply taxes and benefits in the colonies, but the cases loomed large over the court’s decision.
In a concurring opinion, Justice Neil Gorsuch surprised many by issuing a strong critique of the Insular Cases, arguing that they featured “shameful” and “fundamental” flaws. “The Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes,” Gorsuch wrote. “They deserve no place in our law.”
As the lone dissenter in the case, Justice Sonia Sotomayor condemned the Insular Cases, writing that they “were premised on beliefs both odious and wrong.”
Given these criticisms, human rights groups are calling on SCOTUS to take up the case of John Fitisemanu, a U.S. national from American Samoa who has been living in Utah for more than two decades but has been denied the basic rights of U.S. citizenship, such as the right to vote. Fitisemanu and his supporters reject the logic of the Insular Cases that birthright citizenship and its associated rights are not guaranteed under the Constitution to people born in the so-called “unincorporated” territories.
“I can’t vote for President, my state governor, or even my local school board,” Fitisemanu said. “I am also excluded from many state and federal jobs, all this despite being an American.”
So far, the Biden Administration has shown little interest in moving against the Insular Cases. Last year, the Justice Department embraced the logic of the Insular Cases to claim that birthright citizenship is not a constitutional right of people born in the territories.
“The executive branch, particularly the U.S. Department of Justice, is still more part of the problem than the solution,” Weare said. “Over the last decade, the DOJ has not only relied on the Insular Cases but even actively dissuaded the Supreme Court from overruling them.”
With Fitisemanu petitioning SCOTUS to hear his case, some U.S. officials are siding with him and his supporters to urge the Justice Department to change its approach and take a stand against the Insular Cases.
“In 2022, no one should use the racist language from the Insular Cases to deny citizenship rights to people born in U.S. territories,” said Stacey Plaskett, representative of the U.S. Virgin Islands. “Not federal judges. And certainly not the Biden-Harris Justice Department.”