A coalition of civil rights groups led by the ACLU on Thursday called on the outgoing Democratic House majority to pass a resolution recognizing equal constitutional rights for residents of all U.S. territories.
The resolution, introduced in 2021, would repudiate the so-called “Insular Cases,” a series of Supreme Court decisions that decreed limits to the rights of U.S. nationals in territories based largely on their race.
“This bipartisan resolution presents an historic opportunity for the House to reject the racist Insular Cases and their doctrine of ‘territorial incorporation,’ which established what has been criticized as a doctrine of ‘separate and unequal’ status for the 3.6 million residents of U.S. territories – 98% of whom are people of color,” wrote the groups.
“While both liberal and conservative Supreme Court Justices have recently criticized the Insular Cases as ‘odious and wrong’ and ‘rest[ing] on a rotten foundation,’ the Supreme Court has repeatedly passed on opportunities to reconsider these controversial cases.”
Most recently, the Supreme Court in October and November passed on two cases that would have challenged the Insular Cases.
In October, the Court refused a case brought by an American Samoan U.S. national who sought U.S. citizenship — American Samoans are by statute U.S. nationals, not citizens, with reduced political rights on the mainland.
In November, the Court turned away a case brought by a Puerto Rican teachers’ organization that sought equal treatment regarding retirement benefits for that territory’s educators.
The diversity of causes affected by the Insular Cases reflects how broadly the late-19th and early-20th century worldview that informed the decisions still affects daily lives of territorial residents.
“Indeed, it is broadly accepted now that these cases entrenched racialized imperialist-era concerns over extending constitutional protections to people of color. At the time, prominent members of Congress from both parties did not want the Constitution to apply fully to these territories because they found the islands’ residents unfit to enjoy its full benefits,” wrote the groups.
“The Supreme Court itself described these persons as ‘alien races’ and ‘savage tribes’ who were less deserving of full Constitutional protection. In the principal decision, Justice Edward White warned against the dangers of admitting an ‘unknown island, peopled with an uncivilized race.'”
Still, not all territories support overturning the effects of the Insular Cases, although none currently defend the racist reasoning behind them.
American Samoa, for example, campaigned against the Supreme Court taking up the citizenship case, arguing that full U.S. citizenship would be incompatible with Samoan governance and land ownership traditions.
But advocates see an opportunity for Congress to officially decry the underpinnings of the Insular Cases, though a House resolution would not change their legal effects.
“With the Supreme Court recently dodging two opportunities to overrule the Insular Cases, it is more important than ever for the House to make clear that the racist Insular Cases and the colonial framework they established should have no part in the United States today,” said Neil Weare, President and Founder of Equally American, a group that advocates for equality for residents of the territories.
And advocates see the current lame duck session as an opportunity to raise awareness of the Insular Cases, both from an immediate political lens, and from a historical point of view.
“With next year marking the 125th anniversary of the United States holding formal overseas colonies, the time for the House to act is now. For these reasons, Congress should roundly condemn the outdated racist and imperial rationale underpinning the Insular Cases and adopt H. Res. 279 before this session expires,” wrote the groups.