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OP ED: Congress needs deeper understanding of Insular Cases

The letter dated April 15, signed by numerous members of the U.S. House of Representatives and Senate and addressed to the U.S. Attorney General, underscores the continuing interest and concern about the legacy of the historical and modern era Insular Cases.

American Samoa has had a different experience under the Insular Cases than some of the other current territories. The historical and current modern era Insular Cases rulings have not prevented the President and Congress to implement the 1900 and 1904 Deeds of Cession faithfully.  In some ways the Insular Cases have helped American Samoa balance the supremacy of federal law in federal-territorial relations with local self-determination on our internal political and cultural affairs.

But we understand many of our fellow Americans in the other four territories seek remedial reform of federal-territorial relations and relief from the law of the Insular Cases. We support the other territories pursuing more equitable equivalence for Americans in the territories under federal law, compared to former incorporated territories where the U.S. Constitution applied until admission to statehood.     

However, in recent years the U.S. Supreme Court has been asked to overturn the Insular Cases doctrine of territorial non-incorporation and create special rights for territories and/or treat territories either more like or the same as states. That includes lawsuits brought in the name of Puerto Rico, Guam and even by special interests seeking to change the status of American Samoa without local self-determination.

In all cases the highest federal court has upheld the “unincorporated territory” doctrine that was the actual law emanating from the Insular Cases line of rulings. The high court has made it clear that Congress, not the courts, is the proper constitutional venue for territorial law reform.

To now ask the Attorney General and Department of Justice lawyers to pretend the Insular Cases no longer are recognized under our law is not consistent with the Attorney General and DOJ attorneys take to uphold U.S. law. U.S. law is prescribed and determined by the Congress, President and Supreme Court, in their respective roles as co-equal branches of government.

Having lost in court, there is a legal shell game being played with the law to create confusion rather than clarity, in a scheme to get through political manipulation legal results denied by the courts.

To be specific, it is true that the original Insular Cases from 1901- 1922 were handed down when imperialism, colonialism and racism were prevalent in America, Europe and Asia, including legally institutionalized racism in the U.S. under the Plessy v. Ferguson “separate but equal” racial segregation legal doctrine. 

However, Plessy v. Ferguson was overturned by the Supreme Court in 1954.

In 1957, the Insular Cases were affirmed as valid territorial law in the Reid v. Covert ruling, in which the first black Justice, Thurgood Marshall, joined the court’s majority, voting to approve the decision of the court.

That modern era ruling upholding the Insular Cases was followed by other modern era Insular Cases in one or more of which court members with diverse judicial philosophies from Ruth Bader Ginsburg to Clarence Thomas joined the majority, including Examiners v. Flores de Otero (1976), Boumediene v. Bush (2008), Puerto Rico v. Sanchez Valle (2016), FOMB v. Aurelius (2019), U.S. v. Vaello Madero (2022). 

The trick being played here is to convince Congress and the public that the rhetorical racism in a single 1901 ruling makes all the Insular Cases from 1901 to 2022 racist. 

By the same logic, the current apportionment of representation in Congress under Article II, Section 1 of the U.S. Constitution is racist because the original provisions included the 3/5’s clause institutionalizing slavery.

The repeal of the 3/5’s clause under the 14th Amendment purged legally institutional racism from the constitution just as the Brown v. Board of Education ruling and Civil Rights Act of 1964 urged legally institutionalized racism from the Insular Cases, leaving determination of impermissible discrimination to the Congress, President and Supreme Court according to the rule of law. 

In this context, it is important to note that the Insular Cases — the current Insular Cases — do not prevent Congress from applying federal programs and service, including SSI and SNAP, in any territory equivalent to the states or incorporated territories. Nor does the Insular Cases permit Congress, the President or the Supreme Court to withhold federal programs and services based on invidious discriminatory purposes as determined under rule of law standards.

Thus, it is concerning that members of Congress may be misled by oversimplified assertions of exuberant but inexperienced litigation lawyers that in every case the actual law of Insular Cases was racist as opposed to racist attires, and that every Insular Cases ruling departed from America’s anti-colonial traditions.

In reality, the Insular Cases include rulings under which the unincorporated territory of the Philippines was decolonized in favor of independent nationhood, pursuant to declaration by resolution of Congress in 1916. 

Similarly, the Insular Cases include Rassmussen v. U.S. (1905) in which the court ruled that the U.S. Constitution applied in full to Alaska as an incorporated territory, decolonizing the territory in recognition that U.S. citizenship was provided for in Article III of the 1864 Russian cession treaty.

That nexus between citizenship and application of the U.S. Constitution in territories was recognized under the Louisiana Purchase (1803) and the Mexican cession treaty (1848), and was consistent with the territorial status resolution tradition of the Northwest Ordinance, a founding document of our republic.

In contrast, it was the absence of any provision for citizenship in Article IX of the 1899 Spanish cession treaty signed on behalf of the President and submitted to Congress, then ratified by the Foraker Act in 1900, that created the separation of powers dilemma presented to the Supreme Court in Downes v. Bidwell in 1901.

Simply stated, the treaty stated only that Congress would determine the “political status and civil rights” of the Spanish national inhabitants of the territories ceded by Spain. But the 1900 territorial organic act was silent on nationality.  

While the April 15 letter from members of Congress to DOJ quotes 9 words in the 1901 Downes v Bidwell ruling, the remaining 58,000 words in the courts opinions addressed the separation of powers conundrum as to the the political status of the territory. In the court’s opinion and a concurring opinion the court declined to declare the territory to be joined in permanent union under the Constitution until until Congress first determined the nationality of the inhabitants who were at that time not U.S. citizens.

The real evidence of racism that topically is the handmaiden of imperialism and colonialism is the case of Balzac v. Puerto Rico (1922), in which the court ruled that even after Congress conferred citizenship in 1917 the U.S. could rule Puerto Rico under the “unincorporated” territory doctrine of Downes v. Bidwell (1901) that had applied only to territories with non-citizen populations. 

Instead of recognizing the aggravated discriminatory effect of Balzac applying Downes to U.S. citizen communities in Puerto Rico, Congress accepted "Balzac citizenship" and applied it to U.S. Virgin Islands, Guam and Northern Mariana Islands.

That is how Congress has evaded responsibility for territorial status resolution through status options compatible with the U.S. Constitution, including incorporation, statehood, independence or free association, or continuation of unincorporated territory status if chosen by the people, through a local and/ or federally sponsored mechanism for self-determination between those options based on self-determination.

That is why we respect the individual views of Justices Sotomayor and Gorsuch regarding the Insular Cases as described by some federal lawsuit litigants with seemingly more political rather than legal agendas.

However, it is the opinion by the court authored by Justice Kagan on the federal-territorial relations in Puerto Rico v. Sanchez Valle that must carry more weight with Congress:

“…one power Congress does not have, just in the nature of things: it has no capacity, no magic wand or airbrush to erase or otherwise rewrite its own foundational role in conferring political authority. Or otherwise said, the delegator cannot make itself ay less so — no matter how much authority it opts to hand over…Because when we trace that authority all the way back, we arrive at the doorstep of the U.S. Capitol…”

Given the opportunity to co-sign the April 15 letter that I did not have because I had to travel to the most distant of any district represented in the House (American Samoa), I would have been honored to support our fellow Americans in the territories seeking greater equity and democracy in federal-territorial relations.

However, in keeping with Justice Kagan’s opinion for the court cited above, if I had that opportunity there are two questions that I would have posed to my colleagues in 2024 what I think Congress should have asked itself in 1901 when Downes was handed down, and again in 1922 when Downes was applied to U.S. citizens by Blzac:

  • Why are members of Congress who believe the Insular Cases are bad law asking the Attorney General and the U.S. Supreme Court to fix a problem over which Congress has primary jurisdiction, authority and responsibility under the Territorial Clause of the U.S. Constitution?
  • Isn’t asking the courts to answer political questions on the status of people in territories repeating the same abdication of Congressional duty under the Territorial Clause which led the court in 1901 to invent unincorporated territory status as an interim provisional substitute political status, until Congress determined whether to confer statutory nationality/ citizenship under the Naturalization Clause or extend full protections of the U.S. Constitution.
  • Isn’t the constitutionally responsible course to follow now for Congress to restore the Northwest Ordinance model of territorial status resolution and respect the American idea of government by consent, now also recognized under the international principles of self-determination, and sponsor a mechanism for territories to express freely and democratically majority rule on future status options Congress deems to be compatible with the U.S. Constitution and national policy consistent with our nation’s interests?   
  • Congress has authority and responsibility to codify the law of the Insular Cases on terms it approves.  That’s what it should have done in response to the Downes v. Bidwell case in 1901.   Congress should not have accepted Balzac v. Puerto Rico in 1922, applying non-incorporation doctrine applicable to non-citizens until 1917 after conferring citizenship.  From the original Insular Cases in 1901-1922 to Sanchez Valle in 2016, the Insular Cases have been a judicial call to action by Congress that Congress has treated as an excuse for inaction and abdication of duty.