By Jayvee Vallejera
Two members of Congress, civil rights groups, and other allies banded together last April 17, 2024, to call on the U.S. Department of Justice to condemn and cease its reliance on the Insular Cases, a series of racist U.S. Supreme Court decisions that broke from prior precedent to justify colonial governance in the U.S. territories.
House Natural Resources Committee Ranking Member Raúl M. Grijalva (D-Ariz.; represented by staff) and Delegate Stacey E. Plaskett (D-V.I.) also announced that they sent a bipartisan, bicameral letter to DOJ earlier this week signed by a total of 43 Members of Congress, including House Judiciary Ranking Member Jerrold Nadler (D-N.Y.) and Senate Judiciary Committee Chair Dick Durbin (D-Ill.).
The letter follows a filing by the Justice Department last month in which it stated that “aspects of the Insular Cases’ reasoning and rhetoric, which invoke racist stereotypes, are indefensible and repugnant.” However, the court has yet to reject the doctrine wholly and expressly.
The Insular Cases have been compared to infamous decisions, including Dred Scott v. Sandford, Plessy v. Ferguson, and Korematsu v. United States, that have already been denounced by the DOJ. That’s not the case with the Insular Cases, which the DOJ continues to defend.
There was no immediate word from the DOJ, though, on how it intends to respond to this latest salvo against the Insular Cases.
At the press conference in front of the U.S. Capitol in Washington, D.C. on April 17, Grijalva issued a statement (read by his representative) that the Justice Department’s criticism of aspects of the Insular Cases as “indefensible and repugnant” is a step in the right direction. “But it is time for DOJ to go further and unequivocally reject these racist decisions, much as it has for other Supreme Court opinions that relied on racist stereotypes that do not abide by the Constitution’s command of equality and respect for rule of law,” said Grijalva.
He was echoed by Plaskett, the U.S Virgin Islands’ delegate, who said now is a crucial opportunity for the DOJ to take the lead in rejecting the Insular Cases. “For far too long these decisions have justified a racist and colonial legal framework that has structurally disenfranchised the 3.6 million residents of U.S. territories and denied them equal constitutional rights. Neither the DOJ nor anyone else should be defending any ‘aspects’ of the racist Insular Cases,” she said.
Durbin, who is also the U.S. Senate majority whip, described the Insular Cases are a stain on the history of the country and its highest court. “To this day, these decisions still impact those who live in U.S. territories. We need to acknowledge that these explicitly racist decisions were wrongly decided, and I encourage the Department of Justice to say so,” he said.
Nadler said the DOJ stands at a pivotal moment to “correct a historic injustice and end the second-class treatment of the over 3 million citizens who live in U.S. territories. Our government is long overdue in rejecting this racist and discriminatory doctrine, and I'm proud to join my colleagues in this effort to end Representatives of prominent civil rights groups and other allies that joined the press conference also spoke out against the Insular Cases."
Representatives of civil rights groups and other allies added their voices to the chorus against the Insular Cases at the press conference.
Neil Weare, co-director of the non-profit Right to Democracy, which has been championing the cause of U.S. territories, said it is time to turn the page on the Insular Cases and the racist doctrine of “separate and unequal” status they created.
Weare’s co-director at Right to Democracy, Adi Martínez-Román, pointed out it was actually the Justice Department itself that presented to the Supreme Court in the early 1900s the racist arguments that laid the foundation for the Insular Cases. Those arguments included calling people in island territories “savage and half-civilized” who could be denied basic constitutional rights and self-determination.
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“The Justice Department has the opportunity to make up for [those] racist arguments,” said Martínez-Román.
Alejandro A. Ortiz, senior counsel for the Racial Justice Program at the American Civil Liberties Union, said the enduring influence of the Insular Cases underscores a “troubling legacy” steeped in racism. “We urge the Department of Justice to publicly reject any continued reliance on them. These antiquated precedents are foundational to the U.S.’s discriminatory and colonial relationship with the territories and subvert the ultimate goal of self-determination. The DOJ’s disavowal of them would be a small but meaningful step towards helping redress this historical injustice,” Ortiz said.
Frankie Miranda, president and CEO of the Hispanic Federation, applauded the move to pressure DOJ to condemn the Insular Cases explicitly, saying the systemic discrimination sustained by the Insular Cases belongs in history books, yet is still being cited as the basis for decision-making about Puerto Rico and other territories. “We support Congress’ call to reject the Insular Cases to protect the constitutional and human rights of people in the territories,” he said.
Lourdes M. Rosado, president and general counsel of LatinoJustice PRLDEF, expressed similar support. “Our government is long overdue to fully reject the precedent these cases have set for more than a century, and how their racist, discriminatory language has influenced how…residents of U.S. territories are treated as second-class citizens by multiple U.S. laws and policies,” she said.
Rosado also called for the elimination of policies that discriminate against residents of U.S. territories when it comes to public benefits and rights, describing it as “rectifying” historical injustices.
In recent weeks, Virgin Islands Gov. Albert Bryan Jr., and Manuel Quilichini, president of the Colegio de Abogados y Abogadas de Puerto Rico (Puerto Rico Bar Association), have also sent letters to DOJ urging it to condemn the Insular Cases.
“Virgin Islanders deserve to enjoy the full range of civil and political rights afforded by the U.S. Constitution,” said Bryan, who wrote to DOJ last month in advance of the 107th anniversary of the United States purchasing the U.S. Virgin Islands in 1917.
“The Justice Department has the opportunity to redress its historic and ongoing error by unequivocally rejecting the discriminatory and racist doctrine of territorial incorporation established by the Insular Cases,” said Quilichini.
This followed a 2022 resolution by the American Bar Association and similar letters from the Virgin Islands Bar Association and New York State Bar Association to the Justice Department.
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