The U.S. Department of Justice (DOJ) this week condemned as “racist” the century-old Insular Cases, a series of Supreme Court decisions that affect U.S. overseas territories.
Critics have long condemned the rulings because they prevent territorial inhabitants from being treated as full U.S. citizens. More recently, ideologues have denounced the legal precedents as examples of the nation’s supposed systemic racism.
The Insular Cases, decided in the early 1900s, concerned the status of territories that the United States acquired as a result of the Spanish-American War of 1898, which brought the era of colonial Spanish rule in the Americas to a close. The word “insular” is a reference to the fact that the island territories were administered by the then-Department of War’s Bureau of Insular Affairs.
The Supreme Court has held that people residing in unincorporated territories such as Puerto Rico weren’t U.S. citizens and that the U.S. Constitution didn’t fully apply there. At the same time, the court found that the Constitution was in full effect in so-called incorporated territories such as Alaska and Hawaii that Congress considered to be moving toward statehood. Alaska and Hawaii became U.S. states in 1959.
In one of the cases, Downes v. Bidwell (1901), the court referred to those living in insular areas as “alien races” whom it may be “impossible” to administer. Another ruling, DeLima v. Bidwell (1901), referred to inhabitants of Guam, Puerto Rico, and the Philippines as “savage tribes.”
Mr. Uriarte continued, writing that the DOJ stressed in a recent court filing that the “‘racist stereotypes’ invoked in the Insular Cases were ‘indefensible and repugnant.’”
The agency “unequivocally condemns the racist rhetoric and reasoning” of the rulings “and unambiguously shares your view that such reasoning and rhetoric are irreconcilable with foundational American principles of equality, justice, and democracy.”
The DOJ has argued in court that questions about the application of the Constitution to territories should be decided “using the ordinary tools of constitutional interpretation—including text, context, historical practice, and precedent.”
The department is making sure that its litigators “consistently apply the same approach to analogous questions and will not rely on the racist rhetoric and reasoning of the Insular Cases,” Mr. Uriarte wrote.
The Insular Cases, which held the federal government could “rule” U.S. territories “largely without regard to the Constitution … have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law,” the justice wrote.
Mr. Grijalva praised the DOJ for the letter.
“We are pleased with the Justice Department’s action to unequivocally reject the racist doctrine of the Insular Cases,” he said in a statement on June 3.
“This is an important step towards the Supreme Court finally overruling these discriminatory decisions, which have served to justify the denial of equal rights and self-determination to communities of color in U.S. territories for nearly 125 years,” Mr. Grijalva said.
Senate Majority Whip Dick Durbin (D-Ill.), said the rulings’ “racist language and logic—are a stain on our country’s history.”
Challenge Denied
In October 2022, the Supreme Court turned away a lawsuit challenging the rulings. The denial of the petition for certiorari, or review, came in an unsigned order in Fitisemanu v. United States. No justices dissented from the ruling. No reasons were provided for the decision.American Samoans living in Utah complained in the lawsuit that the rulings prevented them from receiving full U.S. citizenship. They said that Congress adopted laws granting citizenship to those born in other U.S. territories—the Northern Marianas, Guam, the Virgin Islands, and Puerto Rico—but not to those born in American Samoa.
The American Samoans said they are deemed “non-citizen nationals” instead of U.S. citizens and are denied various rights, such as voting, that U.S. citizens take for granted. Their U.S. passports contain an endorsement that reads, “The bearer is a United States national and not a United States citizen.” American Samoans can apply for full U.S. citizenship through the naturalization process.
Solicitor General Elizabeth Prelogar noted that American Samoans’ status is based on determinations made by Congress, not the Supreme Court. The law known as 8 U.S.C. 1408(1) provides that “persons born in outlying possessions ‘shall be nationals, but not citizens, of the United States at birth.’”
As the Supreme Court affirmed in Boumediene v. Bush (2008), the Constitution applies “in full” in incorporated territories but “only in part” in unincorporated territories. Guarantees of “certain fundamental personal rights” apply in unincorporated territories but other constitutional guarantees do not apply there “at least if ‘judicial enforcement of the provision[s] would be ‘impracticable and anomalous.’
But the government “in no way relies on the indefensible and discredited aspects of the Insular Cases’ reasoning and rhetoric,” Ms. Prelogar wrote.
