US courts, DOJ asked to retire 'racist' Insular Cases doctrine



Rep. Raúl M. Grijalva (D-Ariz.), chairman of the Natural Resources Committee, has introduced a bipartisan resolution rejecting the early 20th century U.S. Supreme Court decisions referred to as the Insular Cases.


The resolution argues that these cases rely on a racist, Plessy-era doctrine of “separate and unequal” to establish the relationship between the United States and its territories, made clear by the inclusion of deeply offensive language such as “alien races” and “people with an uncivilized race” when referring to the people living in U.S. territories.


House Resolution 279 is co-sponsored by Rep. Gregorio Sablan (D-CNMI), Rep. Stacey Plaskett (D-USVI), Rep. Michael San Nicolas (D-Guam), Rep. Jenniffer González-Colon (R-P.R.), Rep. Nydia Velázquez (D-N.Y.), Rep. Jesús “Chuy” García (D-Ill.) and Rep. Ritchie Torres (D-N.Y.)

The resolution calls on the courts, the U.S. Department of Justice, and other litigants to reject any continued reliance on the Insular Cases in present and future cases, noting that the "racially grounded holdings in the Insular Cases are contrary to the text and history of the Constitution and have no modern relevance."


"The legacy of the Insular Cases – an unequal legal and political relationship between the U.S. and the territories – continues to threaten the rights and interests of Americans living in the territories," the resolution states.

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The resolution's authors noted that part of the doctrine's legacy is evident in the continued exclusion of U.S. citizens living in the territories from essential federal programs and benefits – an exclusion that multiple federal courts have questioned in recent years.

  • In United States v. Vaello Madero, the U.S. Court of Appeals for the First Circuit unanimously declared unconstitutional the denial of Supplemental Security Income (SSI) benefits to U.S. citizens in Puerto Rico. The U.S. Supreme Court has taken this case up for review, with argument likely set for October 2021.

  • In Schaller v. U.S. Social Security Administration, a federal district court judge delivered a similar ruling for residents in Guam.

  • In Peña Martínez v. U.S. Department of Health & Human Service, declared unconstitutional not just the exclusion of Puerto Rico residents from SSI, but also their exclusion from the Supplemental Nutrition Assistance Program and Medicare Part D low-income subsidies.

The lawmakers said the ongoing discrimination against territorial residents reinforces the need to stop relying on the discredited assumptions about the people living in U.S. territories and antiquated notions of racial inferiority on which they were based.

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“The ‘Insular Cases,’ decided in 1901 by the same Supreme Court that upheld segregation laws, have no place in modern day America,” Sablan said. “In these cases, the Supreme Court calls people living in U.S. territories ‘alien’ and ‘savage and restless people,’ antiquated notions of racial inferiority that should not be the basis of any contemporary court decisions. Our resolution recognizes these racist and imperialist assumptions for what they are. It rejects the Insular Cases and affirms the importance of equal rights for Americans everywhere, even in the U.S. insular areas.”

The resolution is supported by Equally American, a non-partisan organization that advocates for equal rights and representation for the 3.5 million citizens living in U.S. territories, and the American Civil Liberties Union (ACLU).

“The Insular Cases are some of the most unrepentantly racist and doctrinally flawed decisions ever handed down by our nation’s highest court,” Equally American said in a statement.


“They effectively stripped the residents of American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands of their constitutional and democratic rights in ways that are fundamentally incompatible with the guiding principles that the United States was founded upon. That they endure is both a regrettable legacy of racial injustice and an example of judicial inertia in spite of evolving standards of decency and fairness.”

“The Supreme Court's early 1900s ‘Insular Cases’ rest on explicit white supremacist beliefs of non-white people’s inferiority,” said Adriel Cepeda Derieux, senior staff attorney at the ACLU. “They are dangerous relics that stand for the continued second-class status of millions of American citizens. We must reject and eradicate the Insular Cases from law.”


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Grijalva said the Natural Resources Committee plan to host a legislative hearing in May to discuss the resolution.


The committee is also scheduled to hear two different pieces of legislation on April 14: H.R. 1522 by Rep. Darren Soto (D-Fla.) and H.R. 2070 by Rep. Nydia Velázquez (D-N.Y.) – to resolve Puerto Rico’s political status, an issue on which Grijalva said the Puerto Rican people deserve “clarity and closure.”

“Legislative approaches that have gathered popular support will receive a fair hearing and due consideration in this Committee, and I will not put my thumb on the scale,” Grijalva said. “I look forward to hearing about both bills to come to an equitable, and hopefully final, federal agreement on a process to resolve the island’s ultimate political status.”

Grijalva traveled twice to Puerto Rico in the previous Congress to survey damage from Hurricane Maria, meet with elected leaders and clean energy advocates, and hold a public forum on Puerto Rico’s political and economic future. He has garnered respect from multiple political factions on the island, and on the mainland, for dealing fairly with all sides of the status dispute.




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