• Legislative Director and Special Assistant to the Executive Director
    National Association of Attorneys General

The United States’ territories and the District of Columbia are seeing some of the most significant political and legal movement they have experienced in years in several areas, including national reexamination of the Insular Cases, pushes for statehood, citizenship issues, and ongoing litigation about equitable federal benefits in the territories.

Reexamination of the Insular Cases

Decided by the U.S. Supreme Court in the first decade of the 20th century, the Insular Cases are a series of decisions that established the status of the residents of territories which had recently been acquired by the United States during and immediately after the Spanish-American War. These cases remain the basis for the relationship between the territories and the rest of the United States.1 Many attorneys in the territories say the Insular Cases are the reason they went to law school. However, the Insular Cases are much less well known outside of the territories and are not included in some law school curricula.

The Insular Cases, decided by the same Court that upheld the doctrine of “separate but equal” in Plessy v. Ferguson,2 have been viewed by legal scholars as at least partially based on racism and xenophobia. The Justices’ opinions in these cases include derogatory language describing inhabitants of the newly acquired territories as “alien” and “savage and restless people.” The Insular Cases draw a distinction between incorporated territories (those on a path to statehood) and unincorporated territories (those not on a path to statehood), and established that the Constitution does not inherently extend to unincorporated territories. Decried by residents of the territories and by academics for generations, the Insular Cases have recently received increased Congressional scrutiny.

In May, the House of Representatives Committee on Natural Resources held a hearing on H.Res. 279, the Insular Cases Resolution, which would acknowledge that the Insular Cases were based on racial stereotypes and should be rejected. Other than Puerto Rico’s Resident Commissioner, Jenniffer González-Colón, who represents the territory in the House of Representatives but does not vote on the floor, all the cosponsors are Democrats. During the hearing, there was near unanimous consensus by the witnesses that the legal basis for the Insular Cases was outdated and discriminatory. However, there was very little consensus on how to proceed in the future.

Because the Insular Cases are more than a century old, the witnesses were unsure of what immediate changes would occur in each territory if the Insular Cases were overruled by statute. Each territory has faced similar but not identical challenges since the Insular Cases were decided. While witnesses applauded the House for holding the first Congressional hearing to reexamine the Insular Cases, questions remain about how the resolution could impact issues such as the push for statehood. In the absence of a consensus as to next steps, it is unlikely the resolution will move forward.

Statehood

Previously, the longest gap between admission of a new state was the 23 years between Colorado being welcomed as the 38th state in 1876 and North Dakota and South Dakota being admitted as the 39th and 40th states on the same day in 1889 (closely followed by Montana and Washington a week later). The United States is currently in its longest statehood drought, far surpassing the previous record. August 2021 will be the 62nd anniversary of Hawaii statehood, the last time a state was admitted. Recently, the push for statehood in the District of Columbia and the territories has seen a resurgence of interest.

During the 116th Congress, the House of Representatives passed the Washington, DC Admission Act (H.R. 51), which would adjust the current boundaries, rename the area as the State of Washington, Douglas Commonwealth, and instantly admit the District of Columbia as a new state. This was the first time either chamber passed legislation to grant the District of Columbia statehood. The Act was reintroduced during the current Congress in both the House and the Senate and has again passed the House.

Like the District, several territories have seen increased attention in recent years to their own statehood efforts, though without the same level of support from residents. During the last referendum in the District of Columbia, almost 80% of all voters supported statehood. However, just over half of the Puerto Rico’s residents voted in support of statehood during the last Puerto Rico Statehood Referendum in 2020.

Unlike the Washington, DC Admission Act, the Puerto Rico Statehood Admission Act (H.R. 1522, S.780) currently being considered by Congress would not automatically grant Puerto Rico statehood. Introduced in March 2021 by Rep. Soto of Florida and Resident Commissioner of Puerto Rico González-Colón, the Puerto Rico Statehood Admission Act would require the governor of Puerto Rico to call for an election asking residents “shall Puerto Rico immediately be admitted into the Union as a State?” If residents approve the referendum, Puerto Rico would receive statehood. In addition to the Puerto Rico Statehood Admission Act, another bicameral coalition has introduced the Puerto Rico Self-Determination Act (H.R. 2070, S.865), which would similarly call for a referendum vote but also calls for the creation of a status convention and would result in a slower path, if any, to statehood for Puerto Rico.

With populations of 3,000,000 and 800,000 respectively in Puerto Rico and the District of Columbia, the statehood movements there have received much more media attention in recent years than movements in other territories. There is currently no pending legislation to grant statehood to American Samoa, Guam, Northern Mariana Islands, or the U.S. Virgin Islands. None of the other territories have had a public referendum on statehood in at least two decades, so it is also difficult to gauge current support for statehood movements among residents. The government of Guam tried to hold a plebiscite for native inhabitants to vote on Guam’s status, but the U.S. Court of Appeals for the Ninth Circuit held that limiting the participants to “people who became U.S. citizens because of the Organic Act, which establishes U.S. territories, and their descendants” violated the Fifteenth Amendment as a racially-based denial of the right to vote.3. Regardless of next steps, nearly all the political leaders within the territories agree that their residents should have the final decision on any statehood status changes.

American Samoa Citizenship

American Samoans, unlike residents of the other territories and the District of Columbia, are considered U.S. nationals, not citizens, at birth. There is an ongoing debate in American Samoa over whether its residents should be able to decide whether they become citizens by birthright.

As U.S. nationals, American Samoans cannot run for office outside of American Samoa, are ineligible for certain jobs with citizenship requirements, and cannot vote in the Presidential election. American Samoans currently can pursue citizenship individually by going through a naturalization process that is smoother than the one for non-U.S. nationals, but has still been criticized as burdensome and expensive.

In 2018, American Samoans living in Utah sued, alleging that 8 U.S.C. § 1408(1), which designates American Samoans as non-citizen nationals, not citizens, violates the Fourteenth Amendment.4 The government of American Samoa opposed the lawsuit, which could potentially result in U.S. birthright citizenship for its residents. The American Samoa government argued that American Samoa has a unique culture, which includes communal land ownership and matais, local chieftains with hereditary titles. With so much of American Samoan society structured around local traditions, the government is concerned that U.S. birthright citizenship and its benefits and responsibilities could disrupt those structures.

The district court in Utah ruled for the individual plaintiffs, holding “Persons born in American Samoa are citizens of the United States by virtue of the Citizenship Clause of the Fourteenth Amendment. 8 U.S.C. § 1408(1) is unconstitutional both on its face and as applied to Plaintiffs.”5 The governments of the United States and of American Samoa appealed, and in June, the U.S. Court of Appeals for the Tenth Circuit reversed the lower court ruling.6 The court held that it should be Congress’ role, not the courts’, to determine how citizenship questions should be handled for the territories. The court noted that congressional control over decisions impacting the territories has been established since the Insular Cases.  The court stated,

[T]the prevailing circumstances in the territory [should] be considered in determining the reach of the Citizenship Clause. It is evident that the wishes of the territory’s democratically elected representatives, who remind us that their people have not formed a consensus in favor of American citizenship and urge us not to impose citizenship on an unwilling people from a courthouse thousands of miles away, have not been taken into adequate consideration. Such consideration properly falls under the purview of Congress . . .

Supplemental Security Income Case

This fall, the U.S. Supreme Court will hear another prominent case, United States v. Vaello-Madero, being watched closely in the territories. The Supreme Court’s decision could determine whether residents of territories could become eligible for Supplemental Security Income (SSI) benefits. SSI benefits provide financial assistance through the Social Security Administration for low-income disabled or elderly American citizens. Vaello-Madero received SSI benefits while living in New York, but when he moved back to Puerto Rico, the government stopped paying the benefits and sued him to recover payments made to him while he was in Puerto Rico. The decision to stop paying benefits was based on his current residence in Puerto Rico, not his citizenship. In addition to Puerto Rico, residents of Guam and the U.S. Virgin Islands are also excluded from the program’s financial assistance. However, residents in the Northern Mariana Islands are eligible.

The U.S. Court of Appeals for the First Circuit ruled in favor of Vaello-Madero, holding “The categorical exclusion of otherwise eligible Puerto Rico residents from SSI . . . violated the Equal Protection Clause of the Fifth Amendment because it was not rationally related to a legitimate government interest.”7 The Supreme Court granted cert.8 President Biden has voiced his own opposition to what he views as a double standard for certain citizens, and has pledged to work with Congress to remedy this disparity, but he has stated that he will not interfere with the Department of Justice’s continued defense of the case. Like the statehood efforts, this case could be one of the most impactful decisions to affect the territories over the next few years.

Endnotes

  1. The following cases, all decided in 1901, are generally considered to be the core Insular Cases, although legal scholars have also included other cases decided later.  De Lima v. Bidwell, 182 U.S. 1 (1901); Goetze v. United States, 182 U.S. 221 (1901); Dooley v. United States, 182 U.S. 222 (1901); Armstrong v. United States, 182 U.S. 243 (1901); Downes v. Bidwell, 182 U.S. 244 (1901); Huus v. New York and Porto Rico Steamship Co., 182 U.S. 392 (1901). [↩]
  2. 163 U.S. 537 (1896) [↩]
  3. Davis v. Guam, 932 F.3d 822 (9th Cir. 2019) [↩]
  4. Fitisemanu v. United States, 2018 U.S. Dist. LEXIS 231144 (D.Utah, Sept. 13, 2018). [↩]
  5. The Citizenship Clause of the Fourteenth Amendment provides, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” [↩]
  6. Fitisemanu v. United States, 2021 U.S. App. LEXIS 17819 (10th Cir. June 15, 2021). [↩]
  7. United States v. Vaello-Madero, 956 F.3d 12 (1st Cir. 2020). [↩]
  8. United State v. Vaello-Madero, No. 20-303, cert. granted Mar. 1, 2021). [↩]

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