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Op-Ed: Response to DOJ letter on Insular Cases

We support Congressional and DOJ repudiation of race prejudice in 1901-1922 Insular Cases. But we also call for Congressional and DOJ rejection of any further attempts like the Fitisemanu case in 2022 for courts to change the political status of American Samoa under the 1900-1904 Deeds of Cession, unless initiated and approved by our people through local self-determination.”


1. Record of recent Congressional-DOJ correspondence on Insular Cases

As expected, the U.S. Department of Justice (DOJ) once again has confirmed jurisprudence of the so-called Insular Cases cannot properly be relied on to justify race based discrimination against Americans in U.S. territories currently defined as “unincorporated” by U.S. Supreme Court rulings and statutory acts of Congress.  Specifically, as reported by the press on June 3, the DOJ Office for Legislative Affairs (OLA) has responded to an April 15 letter to U.S. Attorney General Garland from 43 members in both houses of Congress, calling for DOJ to repudiate “racist rhetoric” in the Insular Cases.

As previously stated by DOJ lawyers, OLA’s response confirmed that DOJ “…unequivocally condemns the racist rhetoric and reasoning of the Insular Cases,” and that, “Department litigators…will not rely on the racist rhetoric and reasoning of the Insular Cases.”

On May 7, 2024, I also wrote to Attorney General Garland supporting the April 15 letter by her Congressional colleagues. I, however, additionally requested the Attorney General to ensure DOJ will not rely on the Insular Cases doctrine of territorial non-incorporation to justify federal actions that would purport to change the current political status of American Samoa without local democratic self- determination. That request was based on the American principle of government by consent that is not only recognized under the 1900-1904 Deeds of Cession establishing relations between the U.S. and American Samoa, but applies to Americans in all current U.S. territories under applicable decolonization provisions in Article I (2) and Article 73 (a)-(b) of the U.N. Charter, to which the U.S. is a full party.  

2. Distinguishing legal principles and political questions

My May 7 letter to the Attorney General requested DOJ commitment to self-determination beyond the repudiation of long ago nullified racist logic and reasoning in the Insular Cases.  On behalf of the people of American Samoa, assurances are sought that not only Department litigators but DOJ in its entirety, including OLA, won’t rely on Insular Cases to justify discrimination against Americans in the territories that denies local self- determination, through political measures that in effect would constitute anachronistic imperialist and colonialist policies.  

That is why in lieu of simply signing the April 15 letter to the U.S. Attorney General which I supported as to other unincorporated territories, I chose to send my own letter to advise vigilance not only against vestiges of overt institutionalized and impermissible racism under the Insular Cases in the modern era.  Rather, the May 7 letter opposed equally the actual present- day colonialist and imperialist alteration of the political status of territories without local democratic self-determination. While overt official racism has been illegal and unconstitutional in America for seven decades under federal court rulings and civil rights laws, there is no statute or court ruling holding that political measures constituting imperialism and colonialism are not illegal and unconstitutional. That underscores the fact that under the Territorial Clause political status of territories remains a political question for Congress, and, so far, not a constitutional question within jurisdiction of the federal courts.  

In that respect, the OLA letter does not repudiate the actual federal territorial law of the Insular Cases defining unincorporated territory status.  That is consistent with both legal and political realities recognized in the modern era Insular Cases from 1957 to 2022, including the necessity that any change from non-incorporated political status for any territory requires Congress to define and recognize a new political status for each territory compatible with the U.S. Constitution.  In addition, any new political status must be approved through local self- determination consistent with the principle of government by consent and U.S. commitments as a party to the U.N. Charter, as well as the International Covenant on Civil and Political Rights.     

Legal scholars advise Congress retains the power to alter the political status of territories without democratic self-determination, and federal courts can repeat the history of the Insular Cases by once again mandating political status by court edict deciding a political question reserved to Congress under the Constitution.  But without self-determination by Americans in each territory, any invasion of the power and responsibility of Congress by the courts would be a return to the imperialist and colonialist jurisprudence of the 1901-1922 Insular Cases.  That is why, as Justice Kagan recognized in the court’s opinion in Puerto Rico v. Sanchez Valle (2016), the federal courts can sustain juridical order, but Congress rather than the courts must resolve the currently remaining political questions arising from both the historical legacy of the Insular Cases and current federal statute law that codifies non-incorporation doctrine.        

For example, the case of Fitisemanu v. U.S. (2022), referred to favorably in the April 15 letter signed by 43 members of Congress, must be understood as an attempt to use the federal courts to change political status and federal relations for Americans Samoa without local self- determination.  That would have repeated the original sin of the Insular Cases, which was determination of the political question of territorial status by the judicial branch instead of Congress.    

In the case of Balzac v. Puerto Rico (1922), the court went beyond the original judicial activism of Downes v. Bidwell (1901), which invented the unincorporated territory doctrine, which had applied only to non-citizens in unincorporated territories until 1917.  For the first time in American history since the Northwest Ordinance regulated territorial status resolution, the Balzac ruling extended and continued a court created political status to a territory after Congress conferred citizenship for the population.  

It is in that historical context that the Fitisemanu case in effect sought to impose U.S. citizenship under the Balzac ruling to American Samoa.  That would have been an imperialist and colonialist outcome altering the non-citizen national status of American Samoans, based on presumption the island people did not want or need to be consulted.  Legal experts on decolonization have described Fitisemanu as an attempt to impose an undemocratic, imperialist and colonialist change of political status without self-determination.  

3. Constitutionalism and Insular Cases

Overt impermissible race-based discrimination has been unconstitutional since the 1954 ruling by the U.S. Supreme Court in Brown v. Board of Education and the Civil Rights Act of 1964.  In contrast, without government by consent and self-determination there is no constitutional prohibition to DOJ reliance on the actual law of the Insular Cases to continue discrimination against Americans in the territories based on politically determined imperialism and colonialism.  

Thus, it may be generally agreed that some 20 words expressing racist attitudes but not constituting the law of the case in Downes v. Bidwell (1901) still warrant vigilance about racist “rhetoric” in the Insular Cases.  Similarly, although the Downes ruling applied to the foreign populations in Philippines, Puerto Rico and Guam, handed down by the court because Congress had not determined nationality status in those territories, there may be general agreement as well to repudiate any racist “reasoning” that may be identified in the Insular Cases rulings from 1901- 1922.

Still, as noted by the press, the OLA letter does not even imply that the Department will seek to overturn the non-incorporation doctrine of the Insular Cases.  That is prudent because overturning the implicitly imperialist, colonialist and racism tainted Insular Cases decided 1901-1922 arguably would also overturn the Insular Cases decided 1957-2022.  That would leave the territories without any political status defined under federal law, unless the court decided to invent, define and impose a temporary political status until Congress determines a new political status policy for each territory.  Of course, THAT is exactly what the court did in 1901, leading Congress to treat the Insular Cases not as not as a judicial call to action on nationality and status to instead to be used by Congress for 124 years as an excuse for non-action on status resolution for the last five territories.     

4. Correcting abdication of Congressional power or repeating original sin of Insular Cases?

It was widely welcomed that the OLA reply to the April 15 letter from Congress members to Attorney General Garland includes quotations by Department litigators in federal court proceedings going even further in condemning and repudiating the Insular Cases than OLA’s confirmation of DOJ policy.  Thus, instead of suggesting the Department is standardizing the practices of litigators to end racism, the OLA letter is encouraging because it confirms the litigators are standardizing the practices of DOJ’s non-litigators to conform with the legal position of DOJ before the federal courts and under controlling case law.  That includes DOJ representation of the U.S. in litigation leading to the 1957-2022 Insular Cases rulings that are not identified as relying on racist rhetoric or reasoning.  These include, Reid v. Covert (1957), Board of Examiners v. Flores De Otero (1976), Boumediene v. Bush (2008) and Puerto Rico v. Sanchez Valle (2016).  The majorities in some of those Insular Cases rulings included Thurgood Marshall, Ruth Bader Ginsberg and Elena Kagan, not exactly your typical roster of racist imperialist, colonialist justices.  

In the final analysis, the political status dilemma the court created in the 1901-1922 Insular Cases by inventing the unincorporated territory paradigm cannot be fixed by the court, much less DOJ lawyers.  The attempt to do so commits anew the original sin of the Insular Cases.   Under Article IV, Sec. 3, Cl. 2 of the U.S. Constitution, Congress alone has the authority and responsibility to fix what the court broke by deviating from the Northwest Ordinance tradition of territorial status resolution. For, that is the best understanding of non-incorporation, and the pathway to restoring a truly anti-imperialist, non-colonial and non-racist political status model, nowhere explained more clearly than by Justice Kagan in the court’s opinion for the Sanchez Valle case:

“…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…”