Ahead of Key Federal Court Rulings, Chair Grijalva Leads Letter Urging DOJ to Reject Racist “Insular Cases,” Territorial Incorporation Doctrine

Washington, D.C. – Chair Raúl M. Grijalva (D-Ariz.) and six other members of Congress wrote to Attorney General Merrick Garland and Acting Solicitor General Brian H. Fletcher today urging the Department of Justice (DOJ) to expressly condemn the racist legal precedent embodied in the Insular Cases and the territorial incorporation doctrine. The letter, available online at https://bit.ly/3jWJ6Tj, comes as DOJ prepares to argue two key federal cases that will define the legal rights of residents of U.S. territories for years to come.

The Insular Cases are a series of Plessy-era Supreme Court rulings that, in part, created the “territorial incorporation doctrine,” which establishes that the Constitution does not fully apply to the U.S. territories. These cases used racist and offensive language such as “half-civilized” and “alien races” to describe residents of the territories and justify the denial of the constitutional rights and protections they should be entitled to as U.S. citizens and U.S. nationals.

Federal courts continue to rely on the Insular Cases and the doctrine of territorial incorporation to maintain a second-class status for residents of the U.S. territories. For example, the legal doctrine established by the Insular Cases has been used by courts to continually deny people living in the territories equal access to critical federal benefit programs, such as the Supplemental Security Income (SSI) program, Supplemental Nutrition Assistance Program (SNAP), and Medicare Part D low-income subsidies (LIS).

Today’s letter builds on a prior letter to the Department of Justice (DOJ) led by Chair Grijalva and twelve Members of Congress earlier this year, which argued that the exclusion of millions of U.S. citizens who reside in U.S. territories from these federal benefit programs was undeniably tied to the harmful legacy of the Insular Cases, and that DOJ should stop defending inequality in court.  The letter released today goes a step further by calling on DOJ to publicly condemn the Insular Cases and the territorial doctrine. The signatories ask DOJ to call on prominent courts to “help place the Insular Cases and the territorial incorporation doctrine in the dustbin of history alongside Plessy and Korematsu where they belong.”

The letter highlights upcoming rulings in Fitisemanu v. United States and United States v. Vaello-Madero, which are being considered by the Tenth Circuit Court and U.S. Supreme Court, respectively. Because of upcoming deadlines in both cases, DOJ will have an opportunity to weigh in and address the continued application of the Insular Cases and the territorial incorporation doctrine.

“Today more than ever, the Justice Department has a moral responsibility to help right this historic wrong. The trust the people of the United States places in the Justice Department, including those born or living in U.S. territories, comes with a special obligation to uphold the nation’s core values,” the letter states. “The Justice Department should ask itself whether it wants to remain complicit in the racism inherent in the Insular Cases by continuing to perpetuate the ‘separate and unequal’ status facing residents of U.S. territories. Our nation deserves better, and the people of the territories deserve better.”

In March, Chair Grijalva helped introduce a bipartisan resolution that similarly called on the courts, DOJ and other litigants to reject any continued reliance on the Insular Cases in present and future cases. The Natural Resources Committee hosted a legislative hearing in May to discuss this resolution, which included testimony from elected officials from the territories and academic scholars. The Committee also held an oversight hearing in July to discuss the extension of key federal benefits programs like SSI, SNAP and Medicaid to the U.S. territories within the president’s fiscal year 2022 budget.

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