ABA Passes Resolution Supporting Equality in U.S. Territories, Rejecting Insular Cases

The front of the U.S. Supreme Court building, with the words “Equal Justice Under Law”  (Shutterstock image)

Today the American Bar Association’s House of Delegates passed Resolution 404, calling for equal rights for the 3.6 million residents of U.S. territories and rejecting the Insular Cases, a series of racist Supreme Court decisions that broke from precedent to establish a colonial framework for governing island territories.  The resolution was co-sponsored by the New York State Bar Association, which recently established a Task Force on the U.S. territories, and the Virgin Islands Bar Association, which in recent years has advanced a number of ABA resolutions to elevate legal and policy issues facing residents of U.S. territories. Sherry Levin Wallach, president of NYSBA, and Anthony Ciolli, past-president of the VI Bar, spoke in support of the resolution.

The resolution is timely, as civil rights groups, leaders and former judges from U.S. territories, and others press the Biden-Harris Department of Justice to join rather than oppose calls for the Supreme Court to overrule the Insular Cases. The Justice Department has until Aug. 29 to either support or oppose a petition in Fitisemanu v. United States calling on the Supreme Court to finally consider “whether the Insular Cases should be overruled.”

To date, the Justice Department has relied on some of the most racist passages of the Insular Cases to argue that Congress has the power to deny birthright citizenship to people born in U.S. territories.

“It is great to see the ABA doing its part to reject the racist Insular Cases and help dismantle the colonial framework they established. Today’s resolution is a significant step towards addressing the ABA’s own history, given that the ‘Father of the ABA,’ Yale Law School Professor Simeon Baldwin, was one of the most prominent voices writing in support of the controversial legal theories that would become the Insular Cases,” said Neil Weare, president and founder of Equally American, which advocates for the United States to address its colonies problem. Weare also serves as co-counsel in Fitisemanu v. United States, along with attorneys at Gibson, Dunn & Crutcher and American Samoan attorney Charles V. Ala’ilima.

Weare added: “As institutions like the ABA grapple with their role in historically contributing to America’s colonies problem, the U.S. Justice Department should reassess how its actions in court continue to do so even today.”

The Supreme Court is expected to decide whether or not to reconsider the Insular Cases when it votes on the petition for certiorari in Fitisemanu v. United States this fall.