Over 3.5 million Americans currently live in the United States territories, a number that is roughly equivalent to the populations of the five smallest states combined. These residents of Puerto Rico, Guam, American Samoa, the US Virgin Islands, and the Northern Mariana Islands exist in a type of legal limbo—undoubtedly part of the United States, yet denied the full rights afforded to US citizens born in one of the 50 states. The legal basis for this system was established by the Supreme Court in the early 1900s when they ruled in the Insular Cases that the Constitution does not fully apply to “unincorporated” territories. While the Territory Clause of the Constitution allows for territorial incorporation, thereby enabling US settler colonialism, territory status was generally thought of as a temporary designation on the path to statehood. By inventing the term “unincorporated territory,” the court created an alternate pathway of indefinite colonial administration. Struggling to decide how to handle the large swaths of territory acquired after the Spanish-American War, the Court was heavily influenced by fears of non-white populations joining the country with Justice Brown warning in Downes v. Bidwell that “savages” and “alien races, differing from us” might become “entitled to all the rights, privileges and immunities of citizens.” While widely recognized as misguided and racist, the Insular Cases continue to subject the residents of the US territories, 98 percent of whom are “racial or ethnic minorities,” to second-class status.
The case of Fitisemanu v. United States, currently under review by the Supreme Court, offers the latest attempt to address this scar on our national history. The plaintiffs, three American Samoans living in Utah, argue that the Citizenship Clause of the 14th Amendment, guaranteeing citizenship to anyone “born or naturalized in the United States and subject to the jurisdiction thereof,” automatically grants citizenship to those born in the territories. While Congress has extended citizenship to the other four inhabited territories through legislation, American Samoans retain US national status and are prohibited from holding certain federal jobs or voting in elections even after establishing residency in a US state. The plaintiffs ask the court to formally overrule the Insular Cases, something that would have wide-reaching implications. Considering Justice Gorsuch’s argument in United States v Vaello Madero that the Insular Cases “deserve no place in our law” and Justice Sotomayor’s recent statement calling them “odious and wrong,” the Court increasingly appears ready to reject the legal basis for perpetual colonialism in the unincorporated territories.
The government of American Samoa, however, recently filed a brief urging the court not to hear Fitisemanu, arguing that the constitutional separation between the states and the territories is essential to preserving fa’a Samoa, or the traditional Samoan way of life. The government worries that applying the Constitution’s Equal Protection Clause to American Samoa would endanger the hereditary titles and land ownership essential to the matai system, potentially leading to the type of cultural erasure experienced by Native Hawaiians. These concerns raise an important question: How can we as a country address the racist logic found in the Insular Cases while ensuring that those efforts do not further harm indigenous communities or go against the wishes of those living in certain territories? I argue that the court should still overturn the Insular Cases, but this action must be accompanied by new political frameworks that support the self-determination of those living in US territories.
While applying the Constitution’s Equal Protection Clause to the territories could theoretically open the door to challenges to the constitutionality of the matai system on the basis that it discriminates against non-indigenous residents, constitutional scholars and advocates have argued that this outcome is unlikely. First, the due process and equal protection clauses already apply to American Samoa based on the precedent set in Balzac v. Porto Rico. If someone wanted to challenge the constitutionality of the matai system, they could do so irrespective of the outcome of Fitisemanu. Secondly, the constitutionality of this type of land inheritance has already been challenged in the Northern Mariana Islands where the residents are American citizens and was deemed constitutional by the Ninth Circuit. I seek not to minimize the concerns raised by the government of American Samoa, but rather to show that it would be incredibly unlikely that repealing the Insular Cases would lead to the erasure of American Samoan cultural practices. Repealing the Insular Cases should focus on repairing historical harm and present injustice, and the courts have numerous tools to protect indigenous rights if a legal challenge emerges.
Overturning the Insular Cases would, however, immediately deliver numerous practical and symbolic benefits. For example, over 100,000 American Samoans living in the mainland US would be able to vote in state and local elections and run for office. American Samoans would also be eligible to serve as officers and join Special Forces units in the military—something they are currently prevented from doing despite serving in the military at higher rates than any other state or territory. If someone can proudly serve in the US military and risk their life for this country, they should not be prevented from serving in leadership positions simply because a 5-4 majority of the 1901 Supreme Court did not want “alien races” to enjoy the same rights as white Americans. As a group of current and former elected representatives from Guam, Puerto Rico, the US Virgin Islands, and the Northern Mariana Islands point out, the citizenship status of people living in those territories would also be protected, since Congress can theoretically revoke their citizenship at any moment under current laws. Repealing the Insular Cases would enshrine citizenship for those born in the territories as a constitutional right, protect the rights of those living in the territories from the whims of Congress, and affirm their equality with those born on the mainland.
Fitisemanu can also serve as an opportunity for the Court to admit that the racist logic used to justify perpetual US colonialism was wrong. As Neil Weare, the founder of the organization Equally American, explains, the Insular Cases rely on similar racist attitudes as Plessy v. Ferguson which created the “separate but equal” doctrine. While Plessy was overturned in 1954, the Insular Cases, decided by many of the same justices, remain fully enforceable. A Supreme Court decision formally repudiating this decision would serve as a powerful recognition of the injustice imposed on Americans living in the territories. This acknowledgement would be largely symbolic. As Christina Ponsa-Kraus writes in the Yale Law Journal, overruling the Insular Cases would not radically change the current system—the territories would remain territories with no voting representation in Congress. The symbolic significance of overturning this shameful precedent could, however, spark greater attention to the issue. Just as overturning Plessy in Brown v. Board of Education sparked decades of legal and political challenges that advanced racial justice in the US, part of the importance of the Court’s ruling in Fitisemanu would be the subsequent political efforts that stem from it.
Rejecting the framework of the Insular Cases would put significant pressure on Congress to address the territory problem, an opportunity they should use to promote the self-determination of those living in each territory. Since the notion of an “unincorporated territory” would no longer exist, all US territories would theoretically have to be on the path to statehood. For some places like Puerto Rico, where in 2020 a majority of voters supported statehood in a referendum, statehood might be a desirable path, although there would likely be significant opposition from some lawmakers in Congress. Other territories, such as American Samoa, that have expressed reservations about further integration with the US might seek an alternate path. For example, American Samoa could seek independence as a free-associated state of the United States, an option that would give them complete sovereignty including representation at the United Nations while maintaining some of the benefits provided by the US as part of an international agreement. Rather than repurposing the racist framework of the Insular Cases, this type of inclusive political debate that would move territories towards statehood or independence would best serve the need for self-determination in the territories. While the courts have no ability to compel congressional action on re-evaluating the status of the territories, the ruling in Fitisemanu could increase political pressure on lawmakers to address this long overdue issue.
The Constitution makes no provisions for second-class citizenship or permanent colonialism. Overruling the shameful and racist doctrine that the court invented a century ago in the Insular Cases need not, however, come at the expense of indigenous rights. Rather, it is precisely the practical and symbolic significance of overruling this precedent in Fitisemanu that might spark a genuine effort to recognize the right of the residents of the territories to self-determination and representation, using both legal and political means to advance a more just future.