Panel on Territories Decries ‘Odious and Wrong’ Insular Cases

Representatives from five U.S. territories discussed the topic “Insular Cases: Odious and Wrong.” (Illustration courtesy of Microjuris)

They couldn’t be much further apart historically, culturally, or geographically, but five U.S. territories, as they were represented in a live-streamed forum Wednesday night, agree on one thing: America needs to own up to colonialism.

Discussion focused largely on the impact of the century-old “Insular Cases” — which laid the groundwork for treating people in the territories differently from those in the states — and a pending attempt to get the U.S. Supreme Court to overturn the Insular Cases.

Much criticized for the overtly racist language they contain, the Insular Cases refer to a number of individual decisions made by the Supreme Court between 1901 and 1904 that, combined, set out policies for governing far-flung, then newly-acquired lands. Those policies were in effect when the U.S. purchased the Virgin Islands from Denmark in 1917 and they are still being relied upon today.

The panelists noted various ways in which the relationship between their local government and the U.S. affects virtually all aspects of life for territory residents.

Sheila Babauto, the representative for the Northern Mariana Islands, said climate change is eroding island coastline and yet the Northern Marianas have no voice in setting policy to address global warming. Because it is a territory, it cannot join international efforts, and yet as part of the U.S., it has no say because the federal government takes the lead.

“How can they advocate for us when they don’t even know where we are?” Babauto asked. “This always brings us back to the Insular Cases.”

Lia Fiol-Matta, senior counsel for Latino Justice, who represented Puerto Rico on the panel, spoke to one of the many financial implications. Unlike residents of other territories, including the Virgin Islands, people in Puerto Rico have been left out of the anti-poverty program SNAP, formerly known as Food Stamps. She blamed former President Ronald Regan for replacing Food Stamps in Puerto Rico with a more limited program, adding, “A lot less people are eligible” for assistance under it.

She said she is still grieving over the Supreme Court decision last spring, denying Supplemental Security Income benefits to residents of Puerto Rico. Nearly 15 percent of the island’s 3 million residents — including her own brother — are disabled and they have no access to the Supplemental Security Income safety net that people in the states can rely on.

In its decision on that case, the Court sided with the U.S. Justice Department which argued that Congress could deny benefits to a territory if it had a good reason for doing so, as established by the Insular Cases. In this instance, the reason was that Puerto Rican residents didn’t pay enough federal taxes to warrant the SSI benefit, which is funded through federal income taxes.

Speaking to the specific question about federal disaster assistance in the Virgin Islands, Brian Modeste, the director of Insular Affairs on the Congressional House Natural Resources Committee, said the U.S. has been helpful, but “It’s been a challenge” navigating the rules governing disbursement of funds. Some that work in states, don’t necessarily work in the Virgin Islands. It’s also difficult for the local government to come up with the required matching funds for many grants.

While some territories suffer from unequal treatment between citizens in the territories compared with citizens living in states, American Samoa has a more fundamental concern, according to Charles Ala’ilima, who is the senior counsel on the case of Fitisemanu v United States.

American Samoans are not U.S. citizens. They are U.S. nationals. John Fitisemanu, an American Samoan, believes he should be considered a U.S. citizen, based on the 14th Amendment to the U.S. Constitution which established citizenship by nativity, regardless of other considerations such as race. The Fitisemanu case won in the lower court, was overturned on appeal, and is now at the Supreme Court.

Neil Weare, president of Equally American, and the attorney who represented Guam on the discussion panel, said he expects a decision soon on a “petition for certiorari” asking that the court review the case with an eye to “whether the Insular Cases should be overturned.”

There is some reason to believe the court may take up the matter, as momentum seems to be building for such a review.

Weare said several justices, including Justice Sonia Sotomayor and Justice Neil Gorsuch, have indicated a willingness to review the Insular Cases.

Gorsuch, in fact, all but invited the Fitisemanu petition for certiorari in his written consent in the SSI case in April. Although he concurred with the court’s decision in that case, he also wrote “The Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law.”

In August, the American Bar Association passed a resolution rejecting the Insular Cases and calling for equal rights for residents of the territories.

It’s past time to overrule the Insular Cases, Weare said. They laid the foundation of American colonialism and insidiously implied it was OK to neglect places. In deciding them, the Supreme Court at the time created the problem of “separate and unequal.”

Adding that you can’t fix a problem that you don’t know you have, Weare bemoaned “the failure of the United States to recognize it has a colonies problem.”

“We have to call colonization by its name,” Fiol-Matta said. “You have to be able to call it by its name.”