SAN JUAN, Puerto Rico — On Monday the Supreme Court declined to review a case involving the citizenship rights of residents of American Samoa that advocates had hoped would lead the justices to overturn a series of century-old rulings that provide legal justification for the disenfranchisement of U.S. citizens living in overseas territories.
“It’s a punch in the gut for the Justices to leave in place a ruling that says I am not equal to other Americans simply because I was born in a U.S. territory,” lead plaintiff John Fitisemanu said in a written statement on Monday. “I was born on U.S. soil, have a U.S. passport, and pay my taxes like everyone else. But because of a discriminatory federal law, I am not recognized as a U.S. citizen.”
In the series of Plessy-era decisions known as the Insular Cases, the court designated the nations acquired by the United States after the Spanish-American War as “unincorporated” territories, denying their residents certain constitutional rights afforded to U.S. citizens. To this day, the ongoing legacy of the cases affects the 3.6 million residents of Puerto Rico, Guam, the U.S. Virgin Islands, the Northern Mariana Islands, and American Samoa when it comes to equal rights, self-determination, and structural disenfranchisement.
Fitisemanu v. United States sought to establish that Congress does not have the power to violate the Constitution’s birthright citizenship guaranteed, thus to overturning the Insular Cases.
“THE BEARER IS A UNITED STATES NATIONAL AND NOT A UNITED STATES CITIZEN,” reads the disclaimer on Fitisemanu’s U.S. passport. Born in American Samoa but later moving to Utah, Fitisemanu is considered a “United States national” and not a citizen due to a discriminatory federal law that expressly classifies him and people like him as second-class citizens.
Even though Fitisemanu pays the same taxes as his Utah neighbors and is allowed to travel and work freely in the United States, he does not have the right to vote or run for federal office outside American Samoa.
The challenge was brought by three American Samoans who currently live in Utah —Fitisemanu, Pale Tuli, and Rosavita Tuli— alongside the Southern Utah Pacific Island Coalition, an advocacy group that advocates for Pacific Islanders in the state.
“The Supreme Court has yet again left unresolved the question whether people born in American Samoa are U.S. citizens, which is a disservice both to those who want recognition of a right to citizenship and those who oppose it,” co-counsel Charles V. Ala’ilima said in a written statement.
The decision to deny review “leaves intact the colonial framework that the (Insular) Cases installed,” co-counsel Neil Weare told Latino Rebels. Weare is also the founder and president of Equally American, a civil rights group advocating for the equal treatment of the 3.6 million U.S. citizens living in U.S. territories.
Many legal experts across the political spectrum have tied the Insular Cases to the history of racism and colonialism perpetrated by the U.S. for centuries. Constitutional law scholar Sanford Levinson called the Insular cases “central documents in the history of American racism.”
The “separate and unequal” doctrine —established by the Court’s 1896 decision in Plessy v. Ferguson and later overturned by its 1954 decision in Brown v. Board of Education— remains legally enshrined within the U.S. justice system by the Insular Cases, which refer to inhabitants of the territories as “savage” and “uncivilized.”
The case “authorized the colonial regime created by Congress, which allowed the U.S. to continue its administration —and exploitation— of the territories acquired from Spain after the Spanish–American War,” wrote Puerto Rican jurist Juan R. Torruella in the Yale Law & Policy Review.
Civil rights groups in the territories have long argued that the courts must abandon the Insular Cases if they seek just and equitable treatment for the citizens of U.S. territories.
Of the five inhabited territories owned by the U.S., only American Samoans are considered “nationals,” while Puerto Ricans, Guamanians, Virgin Islanders, and Mariana Islanders are considered U.S. citizens under the law, though they still do not enjoy the same constitutional rights as other citizens. Both Puerto Ricans and Virgin Islanders cannot vote in federal elections but are afforded an elected, non-voting representative in Congress.
“America has a colonies problem and has shown that it’s not willing to recognize it, much less fix it,” Weare told Latino Rebels.
American Samoa has a population of slightly over 50,000 people. Puerto Rico, with its 3.2 million residents, is the largest U.S. territory by population.
There is no widespread consensus in American Samoa as to whether full birthright citizenship is the way to go. The American Samoan government claims that its people “cherish” their “unique political status” and allows them to preserve their traditional Samoan culture, known as “fa’a Samoa.”
Both Justices Neil Gorsuch and Sonia Sotomayor have stated that they were looking forward to reassessing the Insular Cases, but neither of them seemed willing to push the Supreme Court when it came to the Fitisemanu case given they did not write a dissenting opinion.
In U.S. v. Vaello Madero, a case in which the court ruled in favor of denying Supplemental Security Income benefits to U.S. citizens living in Puerto Rico, the two justices used the opportunity to sound off on the Insular Cases.
“A century ago in the Insular Cases, this Court held that the federal government could rule Puerto Rico and other Territories largely without regard to the Constitution,” Gorsuch began his concurring opinion. “It is past time to acknowledge the gravity of this error and admit what we know to be true: The Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law.”
“Because no party asks us to overrule the Insular Cases to resolve today’s dispute, I join the Court’s opinion,” Gorsuch concluded. “But the time has come to recognize that the Insular Cases rest on a rotten foundation. And I hope the day comes soon when the Court squarely overrules them… Our fellow Americans in Puerto Rico deserve no less.”
“In my view,” Justice Sotomayor began her dissent, “there is no rational basis for Congress to treat needy citizens living anywhere in the United States so differently from others. To hold otherwise, as the Court does, is irrational and anti-thetical to the very nature of the SSI program and the equal protection of citizens guaranteed by the Constitution.”
“Equal treatment of citizens should not be left to the vagaries of the political process,” she concluded, explaining that “because residents of Puerto Rico do not have voting representation in Congress, they cannot rely on their elected representatives to remedy the punishing disparities suffered by citizen residents of Puerto Rico under Congress’ unequal treatment.”
“Observing the reasoning, it’s difficult not to ascribe to the court, and to multiple U.S. administrations, the same racist assumptions that undergirded the Insular Cases decisions in the first place—the idea that Puerto Ricans and residents of territories are less than fully deserving of rights under the U.S. Constitution,” Lía Fiol-Matta, senior counsel for Latino Justice, told Latino Rebels.
Both Equally American and Latino Justice, along with other civil rights organizations, remain committed to litigating the “injustices” experienced by the people of U.S. territories.
Former Acting Solicitor General Neal Katyal previously stated that the court’s refusal to take up the Fitisemanu case would risk reviving issues surrounding Dredd Scott v. Sandford, comparing the way the U.S. government denies citizenship rights to American Samoans to how it denied the same to Black Americans.
Carlos Edill Berríos Polanco is a freelance journalist, mostly focused on civil unrest, extremism, and political corruption. Twitter: @Vaquero2XL