DOJ Relies on Insular Cases – Again — in Bid to Keep Status Quo for U.S. Territories

Judge’s gavel (Shutterstock photo illustration)

The U.S. Justice Department has again cited the Insular Cases, widely seen as bluntly racist, to deny equal rights to residents of U.S. territories, this time in a birthright citizenship case brought by a passport-holding American born in American Samoa.

Earlier this year, a deeply divided Tenth Circuit panel reversed a district court decision in Fitisemanu v. United States that recognized that the Citizenship Clause of the Fourteenth Amendment guarantees a right to citizenship to anyone born in the United States, including U.S. territories.

In July, John Fitisemanu – the passport-holding American Samoan who is denied recognition as a U.S. citizen because people born in that territory are legally considered U.S. nationals without birthright citizenship – petitioned for review of the panel’s decision by the full Tenth Circuit.

On Thursday, the Justice Department argued that the Tenth Circuit should leave the panel’s expansive application of the Insular Cases in place, despite the Supreme Court’s guidance last year that the Insular Cases should not be further expanded, said Neil Weare, who represents the Fitisemanu plaintiffs, in a news release.

Weare is president and founder of Equally American, which advocates for equality and civil rights in U.S. territories.

The Justice Department’s move comes one week after members of Congress penned a letter calling on the department to condemn the Insular Cases, and despite the Supreme Court’s guidance last year, said Weare.

Neil Weare, founder of Equally American, a non-partisan civil rights organization. (Photo from

Additionally, in August V.I. Delegate to Congress Stacey E. Plaskett introduced amendments to legislation that, if they become law, would prohibit the Justice Department from using federal funds to defend the Insular Cases.

The Insular Cases, a series of Supreme Court decisions from the turn of the last century, established a legal doctrine of “separate and unequal” status for U.S. citizens of overseas territories founded on the theory that their inhabitants belonged to “uncivilized” and “alien races” who were “unfit” to handle the full rights and duties of citizenship.

The Justice Department also has relied on the Insular Cases to defend a case currently before the Supreme Court, with oral argument now scheduled for Nov. 9.

In that case, United States v. Vaello Madero, the Justice Department is seeking to overturn a decision by the U.S. District Court of Puerto Rico, upheld on appeal to the U.S. Court of Appeals for the First Circuit in April 2020, that American residents of U.S. territories should be eligible to receive federal Supplemental Security Income benefits, which they currently are denied.

The Justice Department argued in its brief before the Supreme Court in June that while Congress has the power to extend Supplemental Security Income benefits to U.S. citizens residing in overseas territories, it is not required to. Not doing so does not violate the Constitution because Puerto Rico’s “unique” status benefits its residents because they pay less in federal taxes and therefore can take care of their own, according to the Justice Department.

The USVI government and the V.I. Bar Association have joined 20 other entities in filing amicus briefs in that case.

“It is hard to understand how the Justice Department’s expansive embrace of the Insular Cases can be squared with the Biden-Harris Administration’s values,” Weare said.

“The Biden-Harris Justice Department embraces the idea that the Insular Cases can be ‘repurposed’ to advance autonomy and self-determination in U.S. territories. But ultimately the Justice Department’s position is that the Insular Cases give Congress unilateral power to determine citizenship and other rights in the territories, regardless what people in the territories want. That’s not autonomy or self-determination,” said Weare, who is from Guam.

“As the members of Congress highlighted in their letter last week, during President Biden’s first week in office he called on the nation to ‘confront systemic racism and white supremacy.’ And in July, President Biden addressed continued discrimination in federal benefits programs against disabled residents of U.S. territories by arguing ‘there can be no second-class citizens in the United States of America.’ Attorney General Merrick Garland explained during his confirmation hearing that ‘we do not yet have equal justice. Communities of color and other minorities still face discrimination,’” said Weare.

“Yet despite all this, the Biden-Harris Justice Department continues to argue against equality and even citizenship in U.S. territories by relying on the Plessy-era Insular Cases, which one leading constitutional scholar has called ‘central documents in the history of American racism,’” he said, referring to Sanford Levinson, a professor at the University of Texas Law School who is known for his writings on constitutional law and a professor

The American Samoa government also filed a brief opposing review of the panel decision, arguing as well that the question of citizenship in American Samoa “is a question for Congress,” said Weare.

“If the citizenship question was about self-determination, then it would have been resolved in 1900 when American Samoans voluntarily transferred sovereignty to the United States with the expectation of citizenship, or in the 1930s and 1940s when American Samoa’s leaders made repeated calls to be recognized as full U.S. citizens,” said Charles Ala’ilima, an American Samoan attorney who also represents the Fitisemanu plaintiffs, in the news release.

“The only reason we’re in court today is because all three branches of the federal government were driven by the kind of racism expressed in the Insular Cases to deny recognition of citizenship to the black and brown inhabitants of America’s island territories,” said Ala’ilima.

A decision by the Tenth Circuit on the Fitisemanu plaintiffs’ petition for review by the full Tenth Circuit is expected in the coming weeks or months, said Weare.

More information about Fitisemanu v. United States, and Vaello Madero v. United States, including court filings, is available at the Equally American website.