For over a century, the status and rights of the US territories have been determined by a set of Supreme Court decisions collectively known as the “Insular Cases.” As a result of these decisions, Northern Mariana Islands residents have been denied citizenship and the right to vote, among a host of other privileges not afforded to the territories.
At the turn of the 20th century, as the US expanded to annex Hawaii and Puerto Rico, imperialist politicians called to treat new territorial acquisitions differently from the states that had previously joined the union as the United States moved westward. The result was the insular cases, which distinguished between “incorporated territories”—the areas intended to eventually become states—and “unincorporated territories,” where no statehood was anticipated. To justify the distinction in governance, the court argued that “if those possessions are inhabited by alien races, differing from us in religion, customs, laws, methods of taxation, and modes of thought, the administration of government and justice according to Anglo-Saxon principles may for a time be impossible.” The result was a legal doctrine that afforded only the most “fundamental” Constitutional rights to the inhabitants of the territories.
Today, the court’s explicitly racial reasoning seems antiquated at best and offensive at worst. Yet the Insular Cases have been upheld throughout the century following their inception. The doctrine was reified in 1922, 1978, and again in 1980.
In 2022, two cases came before the Supreme Court that threatened to finally end the Insular Cases doctrine. First, in United States v. Vaello-Madero, the court considered whether the federal government could apply benefits programs unequally between the states and the territories. In an 8-1 decision, the court affirmed that they could, relying on the precedent from 1978 and 1980, both of which were applying the Insular doctrine. Justice Gorsuch, in a concurring opinion, wrote a scathing criticism of the Insular Cases, asserting that they “have no foundation in the Constitution and rest instead on racial stereotypes.” However, in US v. Vaello-Madero, neither side challenged the Insular Cases head-on–instead, they chose to quibble on the margins of what constituted a “fundamental” Constitutional right that even the territories deserved. As a result, Justice Gorsuch and seven other justices ruled in favor of the Insular doctrine while also acknowledging its obsolescence.
The same year, however, a case that did tackle the Insular Cases head-on nearly appeared before the court. In Fitisemanu v. United States, residents of American Samoa challenged the jurisprudence that granted citizenship to those born in the states but not in the territories. However, in a terse, unelaborated statement, the court announced that it would not be adding Fitisemanu v. United States to its yearly docket.
These two decisions have left the Insular Cases in limbo. On one hand, the court has indicated a willingness to overturn the doctrine should the right case come before them. On the other hand, they have deferred actually doing so when given the opportunity.
The issue is equally complicated in the Northern Mariana Islands. Although there is broad support for overruling the Insular Cases, there have been surprising spots of dissent. As Fitisemanu v. United States snaked its way up the appeals ladder, the Northern Marianas Descent Corporation filed an amicus curiae—friend of the court—briefing, advocating to preserve the Insular Cases. The doctrine, they argued, is necessary to support indigenous land rights in the Northern Mariana Islands. When the commonwealth joined the United States, its covenant established unique property laws. Namely, it allowed the Northern Mariana Islands to pass legislation that restricted land ownership to those of Northern Marianas descent, with foreigners only being able to lease land. Were the Insular Cases overturned, those discriminatory laws may be in jeopardy, threatening to undermine indigenous control over the Northern Mariana Islands.
At the same time, there have been powerful voices for change. In April, Governor Arnold Palacios (I) advocated for the overturning of the Insular Cases. “We’re part of the US There’s really is no reason for that kind of policy,” he succinctly argued. In the past year, federal lawmakers, the Department of Justice, and civil rights advocacy groups have all strengthened their stance against the Insular Cases.
Between contradictory court decisions and legitimate grievances in support of and against the Insular cases, the doctrine will remain steeped in uncertainty. But after a century of their grip over the territories, the tide seems to be turning against the Insular jurisprudence.
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