Justice Department tells Supreme Court to not take up case on 'racist' Insular Cases

President Joe Biden's administration faced a deadline Monday to notify the Supreme Court whether it will challenge the Insular Cases -- a series of old Supreme Court decisions that critics say are highly racist and discriminatory. File Photo by Kevin Dietsch/UPI
1 of 5 | President Joe Biden's administration faced a deadline Monday to notify the Supreme Court whether it will challenge the Insular Cases -- a series of old Supreme Court decisions that critics say are highly racist and discriminatory. File Photo by Kevin Dietsch/UPI | License Photo

Aug. 29 (UPI) -- The Justice Department on Monday said that the Supreme Court should not take up a case on citizenship rights for American Samoa.

President Joe Biden's administration faced a deadline on Monday in response to the case Fitisemanu vs. United States which challenges the constitutionality of a federal law designating people born in American Samoa as "non-citizen U.S. nationals."


In July, the plaintiffs sent a letter to U.S. Solicitor General Elizabeth Prelogar and called on her to urge the Supreme Court to overrule the Insular Cases -- a series of Plessy vs. Ferguson-era decisions that established a doctrine of "separate and unequal" for residents of U.S. territories.

Prelogar wrote in a brief that an appeals court was correct in its finding that Congress should make decisions about citizenship for those born in U.S. territories and that the court should not take on Fitisemanu vs. United States as it was not an appropriate venue to reexamine the Insular Cases.


Fitisemanu vs. United States stemmed from a challenge by John Fitisemanu, Pale Tuli and Rosavita Tula -- who were all born in American Samoa -- to a federal law that denies them the right to vote because, technically, they are not considered U.S. citizens.

The plaintiffs, who were joined by the Southern Utah Pacific Islander Coalition, argued that the Citizenship Clause of the 14th Amendment unequivocally guarantees citizenship to people born on U.S. soil, whether in a state, territory or the District of Columbia.

Further, they contended that Congress doesn't have the power to redefine the Constitution's guarantee of birthright citizenship and otherwise treat those born in U.S. territories as lesser American citizens.

Neil Weare, president and founder of Equally American, a nonprofit advocating for equal rights in U.S. territories, said in a statement ahead of the decision, that the Biden administration had "a chance here to be on the right side of history" by encouraging the high court to take on the case and overturn the Insular Cases.

"It's shocking that the Biden-Harris Administration and the solicitor general continue to breathe life into the Insular Cases which were grounded in a vision of white supremacy that has no place in our society, much less briefs filed by the U.S. Justice Department," he said in a statement to The Washington Post following the decision.


American Samoa's political leadership and delegate to Congress filed an opposition brief saying that there is no consensus on citizenship and that the decision should be negotiated through political process and not decided in the courts.

"For three thousand years, on an archipelago seven thousand miles from this Court, the American Samoan people have preserved fa'a Samoa -- the traditional Samoan way of life, weaving together countless traditional cultural, historical and religious practices into a vibrant pattern found nowhere else in the world," the brief states. "The American Samoan people have kept fa'a Samoa alive in part by preserving their unique political status."

Michael Williams, counsel for the American Samoa government told UPI that the government issued the challenge to maintain its say over citizenship rights.

"The people of American Samoa take their right of self-determination very seriously. American Samoans are opposing this lawsuit because they want to have a voice in deciding their citizenship status," Williams said. "That is why we are asking the Supreme Court to deny review."

Advocates and residents of U.S. territories like American Samoa, Puerto Rico and the U.S. Virgin Islands called on Biden to urge the Supreme Court to overturn the series of decisions made more than 100 years ago that they argue made them second-class citizens.


Others have assailed the Insular Cases as overtly racist and say they disproportionally impact people of color.

"The Insular Cases are unabashedly racist, firmly rooted in white supremacy, and still haunt the day-to-day lives of millions of people," the ACLU of Florida said in a statement early this year.

"In this string of cases decided from 1901 to 1922, the court described the territories' inhabitants as 'alien races' and 'savage tribes.' The court based its views squarely on the presumed racial inferiority of the non-White people who lived there. In doing so, the Supreme Court showed obvious contempt for the predominately Asian, Black, Indigenous, Latinx, and Pacific Islander residents of these territories."

The Fitisemanu petition was filed a week after the Supreme Court released a decision in United States vs. Valleo Madero, which held that Congress can exclude residents of Puerto Rico and other U.S. territories from Supplemental Security Income and other federal programs available to residents of all 50 U.S. states.

Justices Neil Gorsuch and Sonia Sotomayor expressed hope that the high court would "soon recognize that the Constitution's application should never depend on ... the misguided framework of the Insular Cases."


The conservative Gorsuch further declared that the Insular cases "deserve no place in our law" because they "have no foundation in the Constitution and rest instead on racial stereotyping." The progressive Sotomayor added that the rulings "were premised on beliefs both odious and wrong."

During oral arguments earlier this year in United States vs. Vaello Madero, Gorsuch also repeatedly asked Deputy Solicitor General Curtis Gannon for the government's position on the Insular Cases.

Gannon answered that "some of the reasoning and rhetoric is obviously anathema," but declined to give a formal government position on the Insular Cases.

Anthony Romero, executive director of the American Civil Liberties Union; Lourdes Rosado, president of Latino Justice; and Janai Nelson, president of the NAACP Legal Defense and Educational Fund are calling on Biden's administration to condemn the Insular Cases "in the name of liberty, democracy and racial equity."

"Constitutional rights must be guaranteed to all persons in the United States regardless of race and geography," they wrote in a joint letter, according to The Hill.

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