    [House Hearing, 117 Congress]
    [From the U.S. Government Publishing Office]

                   H. RES. 279, ``INSULAR CASES RESOLUTION''

    =======================================================================

                              LEGISLATIVE HEARING

                                  BEFORE THE

                         COMMITTEE ON NATURAL RESOURCES
                         U.S. HOUSE OF REPRESENTATIVES

                        ONE HUNDRED SEVENTEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                            Wednesday, May 12, 2021

                                   __________

                                Serial No. 117-4

                                   __________

           Printed for the use of the Committee on Natural Resources

    [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

            Available via the World Wide Web: http://www.govinfo.gov
                                       or
              Committee address: http://naturalresources.house.gov

                                  __________

                        U.S. GOVERNMENT PUBLISHING OFFICE
    44-548 PDF                  WASHINGTON : 2021

    --------------------------------------------------------------------------------------

                         COMMITTEE ON NATURAL RESOURCES

                          RAUL M. GRIJALVA, AZ, Chair
                    JESUS G. ``CHUY'' GARCIA, IL, Vice Chair
       GREGORIO KILILI CAMACHO SABLAN, CNMI, Vice Chair, Insular Affairs
                      BRUCE WESTERMAN, AR, Ranking Member

    Grace F. Napolitano, CA              Don Young, AK
    Jim Costa, CA                        Louie Gohmert, TX
    Gregorio Kilili Camacho Sablan,      Doug Lamborn, CO
        CNMI                             Robert J. Wittman, VA
    Jared Huffman, CA                    Tom McClintock, CA
    Alan S. Lowenthal, CA                Paul A. Gosar, AZ
    Ruben Gallego, AZ                    Garret Graves, LA
    Joe Neguse, CO                       Jody B. Hice, GA
    Mike Levin, CA                       Aumua Amata Coleman Radewagen, AS
    Katie Porter, CA                     Daniel Webster, FL
    Teresa Leger Fernandez, NM           Jenniffer Gonzalez-Colon, PR
    Nydia M. Velazquez, NY               Russ Fulcher, ID
    Diana DeGette, CO                    Pete Stauber, MN
    Julia Brownley, CA                   Thomas P. Tiffany, WI
    Debbie Dingell, MI                   Jerry L. Carl, AL
    A. Donald McEachin, VA               Matthew M. Rosendale, Sr., MT
    Darren Soto, FL                      Blake D. Moore, UT
    Michael F. Q. San Nicolas, GU        Yvette Herrell, NM
    Jesus G. ``Chuy'' Garcia, IL         Lauren Boebert, CO
    Ed Case, HI                          Jay Obernolte, CA
    Betty McCollum, MN                   Cliff Bentz, OR
    Steve Cohen, TN
    Paul Tonko, NY
    Rashida Tlaib, MI
    Doris O. Matsui, CA
    Lori Trahan, MA

                         David Watkins, Staff Director
                            Sarah Lim, Chief Counsel
                   Vivian Moeglein, Republican Staff Director
                       http://naturalresources.house.gov

                                  ----------

                                   CONTENTS

                                  ----------
                                                                       Page

    Hearing held on Wednesday, May 12, 2021..........................     1

    Statement of Members:

        Gonzalez-Colon, Hon. Jenniffer, a Resident Commissioner in
          Congress from the Territory of Puerto Rico.................     4
            Prepared statement of....................................     6
        Plaskett, Hon. Stacey E., a Delegate in Congress from the
          Territory of the U.S. Virgin Islands.......................     8
            Prepared statement of....................................    10
        Sablan, Hon. Gregorio Kilili Camacho, a Delegate in Congress
          from the Territory of the Northern Mariana Islands.........     2
            Prepared statement of....................................     3

    Statement of Witnesses:

        Ale, Hon. Talauega Eleasalo Va'alele, Lieutenant Governor,
          American Samoa, Pago Pago, American Samoa..................    14
            Prepared statement of....................................    15
        Barnes, Hon. Tina Muna, Vice Speaker, Guam Legislature,
          Hagatna, Guam..............................................    21
            Prepared statement of....................................    22
            Questions submitted for the record.......................    24
        Cuison-Villazor, Rose, Vice Dean and Professor of Law,
          Rutgers University, New York, New York.....................    33
            Prepared statement of....................................    34
        Immerwahr, Daniel, Professor of History, Northwestern
          University, Evanston, Illinois.............................    11
            Prepared statement of....................................    12
            Questions submitted for the record.......................    14
        Watson, Peter S., President & CEO, The Dwight Group, LLC,
          Former White House Director of Asian Affairs, National
          Security Council, Washington, DC...........................    37
            Prepared statement of....................................    38

        Weare, Neil, President, Equally American, Washington, DC.....    25
            Prepared statement of....................................    27
            Questions submitted for the record.......................    31

    Additional Materials Submitted for the Record:

        List of documents submitted for the record retained in the
          Committee's official files.................................    70

        Submissions for the Record by Representative Radewagen

            Statement for the Record of Dr. William B. Cleary........    44

            Article, ``Fair play for nationals and citizens of
              unincorporated territories'' by Dr. William B. Cleary..    48

        Submissions for the Record by Representative Gonzalez-Colon

            Book (Excerpt), The ``de facto'' Incorporated U.S.
              Territory of Puerto Rico, by Gregorio Igartua..........    60

        Submissions for the Record by Lieutenant Governor Ale

            Letter to Governor Ralph Torres, Commonwealth of the
              Northern Mariana Islands, dated March 19, 2021.........    18
            Letter to Governor Pedro Pierluisi, Puerto Rico, dated
              March 19, 2021.........................................    19
            Letter to Governor Albert Bryan, Jr., U.S. Virgin
              Islands, dated March 19, 2021..........................    20

       LEGISLATIVE HEARING ON H. RES. 279, ACKNOWLEDGING THAT THE UNITED
         STATES SUPREME COURT'S DECISIONS IN THE INSULAR CASES AND THE
      ``TERRITORIAL INCORPORATION DOCTRINE'' ARE CONTRARY TO THE TEXT AND
      HISTORY OF THE UNITED STATES CONSTITUTION, REST ON RACIAL VIEWS AND
      STEREOTYPES FROM THE ERA OF PLESSY V. FERGUSON THAT HAVE LONG BEEN
     REJECTED, ARE CONTRARY TO OUR NATION'S MOST BASIC CONSTITUTIONAL AND
      DEMOCRATIC PRINCIPLES, AND SHOULD BE REJECTED AS HAVING NO PLACE IN
         UNITED STATES CONSTITUTIONAL LAW, ``INSULAR CASES RESOLUTION''

                                  ----------

                            Wednesday, May 12, 2021

                         U.S. House of Representatives

                         Committee on Natural Resources

                                 Washington, DC

                                  ----------

        The Committee met, pursuant to notice, at 1 p.m., via
    Webex, Hon. Gregorio Kilili Camacho Sablan [Vice Chair for
    Insular Affairs of the Committee] presiding.
        Present: Representatives Sablan, Napolitano, Costa,
    Lowenthal, Porter, Leger Fernandez, Dingell, Tlaib; Gohmert,
    McClintock, Radewagen, Gonzalez-Colon, Tiffany, Moore,
    Obernolte, and Bentz.
        Also present: Representative Plaskett.

        Mr. Sablan. The Committee will come to order. The Committee
    is meeting today to receive testimony on a resolution to
    acknowledge that U.S. Supreme Court decisions in the Insular
    Cases and the Territorial Incorporation Doctrine are contrary
    to the text and history of the United States Constitution, and
    should be rejected as having no place in United States
    constitutional law.
        Under Committee Rule 4(f), any oral opening statements at
    hearings are limited to the Chair and the Ranking Minority
    Member or their designees. This will allow us to hear from our
    witnesses sooner and help Members keep to their schedules.
    Therefore, I ask unanimous consent that all other Members'
    opening statements be made part of the hearing record if they
    are submitted to the Clerk by 5 p.m. today or the close of the
    hearing, whichever comes first. Hearing no objection, so
    ordered.
        Without objection, the Chairman may also declare a recess
    subject to the call of the Chair. Without objection, so
    ordered.
        And without objection, the Member from the U.S. Virgin
    Islands, Delegate Plaskett, is authorized to question witnesses
    in today's hearing. Hearing no objection, so ordered.
        As described in the notice, statements, documents, or
    motions must be submitted to the electronic repository at
    HNRCdocs@mail.house.gov.
        Additionally, please note that, as with in-person meetings,
    Members are responsible for their own microphones. As with our
    in-person meetings, Members can be muted by staff only to avoid
    inadvertent background noise.
        And finally, Members or witnesses experiencing technical
    problems should inform Committee staff immediately.
        I will now begin with my opening statement.

        STATEMENT OF THE HON. GREGORIO KILILI CAMACHO SABLAN, A
    DELEGATE IN CONGRESS FROM THE TERRITORY OF THE NORTHERN MARIANA
                                ISLANDS

        Mr. Sablan. I want to begin by thanking our impressive list
    of witnesses for being here today, including the Delegate from
    the U.S. Virgin Islands, Congresswoman Stacey Plaskett, and
    Lieutenant Governor Ale from American Samoa. I would also like
    to welcome the Vice Speaker of the Guam Legislature, the
    Honorable Tina Muna Barnes and distinguished academics Dr.
    Daniel Immerwahr, Dr. Peter Watson and former Marianas
    resident, Professor Rose Cuison-Villazor. Lastly, welcome to
    Mr. Neil Weare, former staff of the U.S. House of
    Representatives and now president of Equally American.
        Today's witnesses will be discussing H. Res. 279, which
    would place the U.S. House of Representatives on record as
    rejecting the racist reasoning of the Insular Cases. These
    cases are a series of Supreme Court decisions concerning the
    constitutional rights of residents of the overseas territories
    the United States acquired in the Treaty of Paris in 1898;
    namely, Puerto Rico, Guam, and the Philippines.
        The Insular Cases have also been used to determine rights
    in the U.S. Virgin Islands, American Samoa, and the Northern
    Mariana Islands right up to the present day. The explicit
    reasoning behind the most famous of the cases, Downes v.
    Bidwell in 1901 was that the new territories are inhabited by
    alien races that could not be governed by Anglo-Saxon
    principles. Ever since, the Insular Cases have been used to
    block territorial efforts for equal treatment in essential
    Federal programs from Medicaid and food stamps to SSI, the
    Supplemental Security Income.
        It is true that the Territorial Clause--Article IV, Section
    3 of the U.S. Constitution, which gives Congress the power to
    make all needful rules respecting the territory or other
    property of the United States--provided a judicial basis for
    the Insular Cases. But the theory that some territories are
    incorporated into the United States and, therefore, the
    Constitution applies there in full, while other territories are
    unincorporated, without the full protection of the
    Constitution, was an invention of the U.S. Supreme Court.
        The Territorial Incorporation Doctrine was based on the
    same racial views and stereotypes that led to the notorious
    Plessy v. Ferguson decision in 1896 that gave us the separate
    but equal doctrine and segregation. I will say, Plessy v.
    Ferguson has, of course, been overturned in the modern era. The
    Insular Cases, however, relics of the racist views of the 19th
    century, which have no place in our Nation today, are still in
    active use by the courts. H. Res. 279 puts the House on record
    in favor of overturning the Insular Cases. We recognize,
    however, that this must be done in a manner that respects the
    uniqueness of each territory.
        In American Samoa, for instance, we must take care to craft
    a solution that allows the U.S. nationals to be treated as U.S.
    citizens under some Federal laws, while preserving the local
    Matai culture.
        In the Marianas, my home district, the courts used the
    Insular Cases to justify the seeming incompatibility of the
    equal protection guarantee of the 14th Amendment with the
    restrictions on land ownership only to persons of Northern
    Marianas descent as set forth in Article XII of the NMI
    Constitution.
        This is a 33-year-old decision which may sit on shaky
    ground, given more recent rulings on racial classifications and
    the conservative bent of today's judiciary. I look forward to
    what our witnesses have to say about the wisdom of relying on
    the Insular Cases to protect Article XII, but let us not think
    that the Territorial Clause prohibits Congress from extending
    the applicability of programs such as SNAP, TANF, Medicaid or
    SSI to the territories because they in one way or another are
    already applicable to some of the territories. Congressional
    will or lack thereof is what unites these programs through the
    territories.
        Again, thank you all for being with us today. I look
    forward to receiving your testimony.

        [The prepared statement of Mr. Sablan follows:]
       Prepared Statement of the Hon. Gregorio Kilili Camacho Sablan, a
          Representative in Congress from the Northern Mariana Islands
        I want to begin by thanking our impressive list of witnesses for
    being here today, including my colleague from the Virgin Islands,
    Congresswoman Stacey Plaskett, and Lieutenant Governor Ale from
    American Samoa.
        I would also like to welcome the Vice Speaker of the Guam
    Legislature, Tina Muna Barnes, and distinguished academics, Dr. Daniel
    Immerwahr, Dr. Peter Watson, and the Marianas' own Professor Rose
    Cuison-Villazor.
        Lastly, welcome to Mr. Neil Weare, former staff of the U.S. House
    of Representatives and now President of Equally American.
        Today's witnesses will be discussing H. Res. 279, which would place
    the U.S. House of Representatives on record as rejecting the racist
    reasoning of the Insular Cases.
        These cases are a series of Supreme Court decisions concerning the
    constitutional rights of residents of the overseas territories the U.S.
    acquired in the Treaty of Paris in 1898, namely Puerto Rico, Guam, and
    the Philippines. But the Insular Cases have, also, been used to
    determine rights in the U.S. Virgin Islands, American Samoa, and the
    Northern Mariana Islands, right up to the present day.
        The explicit reasoning behind the most famous of the cases, Downs
    v. Bidwell, in 1901, was that the new territories are ``inhabited by
    alien races'' that could not be governed by Anglo-Saxon principles.
        Ever since, the Insular Cases have been used to block Territorial
    efforts for equal treatment in essential federal programs from Medicaid
    and Food Stamps to SSI--Supplemental Security Income.
        It is true that the Territorial Clause--Article 4, Section 3 of the
    U.S. Constitution--which gives Congress the power to make all needful
    rules respecting the territory or other property of the United States
    provided a judicial basis for the Insular Cases.
        But the theory that some territories are ``incorporated'' into the
    United States and, therefore, the Constitution applies there in full,
    while other territories are ``unincorporated,'' without the full
    protection of the Constitution, was invented by the Supreme Court.
        That ``territorial incorporation doctrine'' was based on the same
    racial views and stereotypes that led to the notorious Plessy v.
    Ferguson decision in 1896 that gave us the ``separate but equal
    doctrine'' and segregation.
        Plessy v. Ferguson has, of course, been overturned in the modern
    era. The Insular Cases, however, relics of the racist views of the 19th
    century, which have no place in our Nation today, are still in active
    use by the courts.
        H. Res. 279 puts the House on record in favor of overturning the
    Insular Cases.
        We recognize, however, this must be done in a manner that respects
    the uniqueness of each territory.
        In American Samoa, for instance, we must take care to craft a
    solution that allows the U.S. Nationals to be treated as U.S. citizens
    under some federal laws, while preserving the local Matai culture.
        In the Marianas, my home district, the courts used the Insular
    Cases to justify the seeming incompatibility of the equal protection
    guarantee of the 14th Amendment with the restriction on land ownership
    only to persons of Northern Marianas descent in Article XII of the
    Marianas Constitution.
        This is a 30-year-old decision, which may sit on shaky ground,
    given more recent rulings on racial classifications and the
    conservative bent of today's judiciary. I look forward to what our
    witnesses have to say about the wisdom of relying on the Insular Cases
    to protect Article XII.
        Again, thank you all for being with us today. I look forward to
    receiving your testimony.

                                     ______

        Mr. Sablan. The Chair now recognizes the Vice Ranking
    Minority Member for Insular Affairs for her opening statement,
    the Resident Commissioner Gonzalez-Colon. Welcome, you have 5
    minutes.

      STATEMENT OF THE HON. JENNIFFER GONZALEZ-COLON, A RESIDENT
       COMMISSIONER IN CONGRESS FROM THE TERRITORY OF PUERTO RICO

        Miss Gonzalez-Colon. Thank you, Mr. Chair. The
    Constitution's Territorial Clause gives Congress full power
    over the governing and fate of the territories and their
    residents.
        After the Spanish-American war, a major debate arose
    regarding the fate of the newly acquired territories and the
    status and constitutional rights of the residents of those
    territories. The debates reached the Supreme Court in a series
    of cases later called the Insular Cases, where it held that
    full constitutional protection of rights does not automatically
    extend to all places under American control. This meant that
    inhabitants of unincorporated territories such as Puerto Rico,
    even if they are U.S. citizens, may lack some constitutional
    rights.
        As Judge Juan Torruella explained, the Insular Cases
    authorized the colonial regime created by Congress, which
    allowed the United States to continue its administration and
    exploitation of the territories acquired from Spain after the
    Spanish-American war and allowed for the U.S. Government to
    extend unilateral power over these newly acquired territories.
        Former Puerto Rico Supreme Court Chief Justice Jose Trias
    Monge contended that the Insular Cases were based on premises
    that would be legally and politically unacceptable in the 21st
    century, premises such as: that democracy and colonialism are
    fully compatible; that there is nothing wrong when a democracy
    such as the United States engages in the business of governing
    other subjects that have not participated in their democratic
    election process; that the people are not created equal, some
    races being superior to others; and that it is the burden of
    the superior people, the white man's burden, to bring up others
    in their image, except to the extent that the nation which
    possesses them shall in due time determine.
        These decisions were odious, reflecting cultural and racial
    biases that are now rightfully rejected by most Americans.
        I co-sponsor this resolution being discussed today because
    the Insular Cases as written denies democracy and equality and
    reflects abhorrent bias and have provided a justification for
    Congress to discriminate against American citizens unfairly and
    irrationally--citizens to whom full representation in their
    national government has been denied.
        Some of the language of the resolution, however, may
    confuse the fundamental issue of the territories' status, and I
    just want to make clear and make the record clear as to where I
    stand.
        It is not the Insular Cases that deny the residents of the
    territories voting representation; Articles I and II of the
    Constitution do. It is not the Insular Cases that have denied
    equality in Federal programs; it has been Congress who has done
    that.
        As to the Puerto Rico political status, the policy of the
    Federal Government's political branches has been that it is the
    sole responsibility of the majority of the voters of Puerto
    Rico to determine its ultimate political status from among the
    possible constitutional status--statehood or independence, with
    or without a subsequent sovereign relationship with the United
    States, and Public Law 114-187, for example, recognized Puerto
    Rico's right to determine its future political status.
        The island has had three free and fair votes on possible
    status options in 8 years. The first in 2012 specifically
    rejected the current territorial status, while in the last
    plebiscite in November of last year, the majority of voters
    chose statehood. The solution chosen by voters in Puerto Rico
    to determine its ultimate political status is clear. They chose
    by clear majority the equality within the Nation that they are
    citizens of. The voters of Puerto Rico understand that equality
    can't be taken away, and equal voting representation can only
    come through statehood.
        In 1957, the Supreme Court stated that neither the Insular
    Cases nor their reasoning should be given any further
    expansion. However, the Court has not over-ruled these
    decisions and continue to cite them as precedent.
        In 1944, the Supreme Court validated the practice of
    forcibly relocating U.S. citizens to concentration camps on the
    sole basis of race within the scope of presidential authority,
    and it took 75 years for the Supreme Court to correct that, and
    that is the reason today we can have an opportunity to overcome
    that. However, this resolution will send an unequivocal message
    to the executive and judiciary branches of our government that
    we repudiate the cultural biases that these cases are based on
    and, as such, should not be the basis for those decisions.
        Having said that, I want to put on the record the book by
    Chief Judge Gustavo Gelpi, who has been nominated today by the
    President of the United States to be a judge in the Boston
    Circuit. It is titled, ``The constitutional evolution of Puerto
    Rico and other U.S. territories.'' I think this is an obligated
    lecture for the Committee.
        Thank you, and I yield back.

        [The prepared statement of Miss Gonzalez-Colon follows:]
          Prepared Statement of the Hon. Jenniffer Gonzalez-Colon, a
                  Representative in Congress from Puerto Rico
        Thank you, Mr. Chairman.

        The Constitution's Territorial Clause gives Congress full power
    over the governing and fate of the territories and their residents.
        After the Spanish-American War, a major debate arose regarding the
    fate of the newly acquired territories and the status and
    constitutional rights of the residents of those territories. The
    debates reached the Supreme Court in a series of cases later called the
    ``Insular Cases'', where it held that full constitutional protection of
    rights does not automatically extend to all places under American
    control. This meant that inhabitants of unincorporated territories such
    as Puerto Rico--even if they are U.S. citizens--may lack some
    constitutional rights.
        As Judge Juan Torruella explained, the Insular Cases ``authorized
    the colonial regime created by Congress, which allowed the United
    States to continue its administration--and exploitation--of the
    territories acquired from Spain after the Spanish-American War'' and
    allowed for the U.S. Government to extend unilateral power over these
    newly acquired territories.\1\
    ---------------------------------------------------------------------------
        \1\ Juan A. Torruella. (Fall 2013). Ruling America's Colonies: The
    ``Insular Cases''. Yale Law & Policy Review 32(1): 57-95.
    ---------------------------------------------------------------------------
        Former Puerto Rico Supreme Court Chief Justice Jose Trias Monge
    contended that the Insular Cases were based on premises that would be
    legally and politically unacceptable in the 21st century, premises such
    as: that democracy and colonialism are ``fully compatible''; that there
    is ``nothing wrong when a democracy such as the United States engages
    in the business of governing other'' subjects that have not
    participated in their democratic election process; that people are not
    created equal, some races being superior to others; and that it is the
    ``burden of the superior peoples, the white man's burden, to bring up
    others in their image, except to the extent that the nation which
    possesses them should in due time determine''.\2\ These decisions were
    odious, reflecting cultural and racial biases that are now rightfully
    rejected by most Americans.
    ---------------------------------------------------------------------------
        \2\ Jose Trias Monge. (2001). Injustice According to Law: The
    Insular Cases and Other Oddities. In Christina Duffy Burnett & Burke
    Marshall (eds.). Foreign in a Domestic Sense: Puerto Rico, the American
    Expansion, and the Constitution. Durham, NC: Duke University Press. p.
    243.
    ---------------------------------------------------------------------------
        I co-sponsored the Resolution being discussed today because the
    Insular Cases doctrine denies democracy and equality and reflects
    abhorrent bias and have provided a justification for Congress to
    discriminate against American citizens unfairly and irrationally,
    citizens to whom full representation in their national Government has
    been denied.
        Some of the language of the resolution, however, may confuse the
    fundamental issue of the territories' status and I want to make the
    record clear as to where I stand. It is not the Insular Cases that deny
    the residents of the territories voting representation; Articles I and
    II of the Constitution do. It is not the Insular Cases that have denied
    equality in Federal programs; it has been Congress who has done that.
        As to Puerto Rico's political status, the policy of the federal
    government's political branches has been that it is the sole
    responsibility of the majority of the voters of Puerto Rico to
    determine its ultimate political status from among the possible,
    constitutional status: statehood or independence (with or without a
    subsequent sovereign relationship with the United States). Public Law
    114-187, for example, recognized ``Puerto Rico's right to determine its
    future political status.''
        The Island has had three free and fair votes on possible status
    options in 8 years. The first in 2012 specifically rejected the current
    territory status, while in the last plebiscite, held November 3, 2020,
    the majority of voters chose statehood.
        The solution chosen by the voters of Puerto Rico to determine its
    ultimate political status is clear: they chose by clear majority the
    equality within the Nation that they are citizens of. The voters in
    Puerto Rico understand that equality that can't be taken away and equal
    voting representation can only come through statehood.
        In 1957, the Supreme Court stated that, ``neither the [Insular]
    cases nor their reasoning should be given any further expansion.'' \3\
    However, the Court has not overruled these decisions and continues to
    cite them as precedent.
    ---------------------------------------------------------------------------
        \3\ Reid v. Covert, 354 U.S. 1, 14 (1957); cf. Downes v. Bidwell,
    182 U.S. 244, 380 (1901) (Harlan, J., dissenting) (``In my opinion,
    Congress has no existence and can exercise no authority outside of the
    Constitution. Still less is it true that Congress can deal with new
    territories just as other nations have done or may do with their new
    territories. The nation is under the control of a written constitution,
    the supreme law of the land and the only source of the powers which our
    Government, or any branch or officer of it, may exert at any time or
    any place.'').
    ---------------------------------------------------------------------------
        In 1944, the Supreme Court validated the practice of forcibly
    relocating U.S. citizens to concentration camps, on the sole basis of
    race, as within the scope of Presidential authority.\4\ It took the
    Supreme Court 75 years to correct what, for years now, everyone else
    has recognized to have been a despicable and shameful act by our
    Government.\5\ If passed by the House, this Resolution would not
    overturn the Insular Cases; the Justices of the Supreme Court will
    continue to bear the shame of their predecessors' racism until they,
    themselves act to overturn them. However, this Resolution will send an
    unequivocal message to the Executive and the Judiciary Branches of our
    Government that we repudiate the cultural biases that these cases are
    based on and, as such, should not be the basis of their decisions.
    ---------------------------------------------------------------------------
        \4\ See Korematsu v. United States, 323 U.S. 214 (1944).
        \5\ Trump v. Hawaii, U.S. __, 138 S.Ct. 2392, 2422 (2018) (``. . .
    Korematsu was gravely wrong the day it was decided, has been overruled
    in the court of history, and--to be clear--`has no place in law under
    the Constitution.' '') (internal citations omitted).
    ---------------------------------------------------------------------------
        If we are serious about reversing the doctrines of the Insular
    Cases, we should do the job that the Constitution has placed upon
    Congress, enact legislation addressing unequal treatment, and grant
    statehood or nationhood if that is the People's choice. Abraham Lincoln
    stated that ``Most governments have been based, practically on the
    denial of the equal rights of men . . . Ours began by affirming those
    rights.'' \6\ Let us work so that we can truthfully say that our
    Country not just began by affirming those rights, but that it survives
    and thrives for that very reason.
    ---------------------------------------------------------------------------
        \6\ Abraham Lincoln, Speech on slavery and the American Dream
    (April 1, 1854) in Fragments on Slavery, teachingamericanhistory.org,
    http://teachingamericanhistory.org/library/document/fragments-on-
    slavery/.

    ---------------------------------------------------------------------------
        I look forward to the testimony and yield back.

                                     ______

        Mr. Sablan. Thank you, Resident Commissioner Gonzalez-
    Colon. I will now turn to our witnesses, but before introducing
    them I will remind the non-Administration witnesses that they
    are encouraged to participate in the witness diversity survey
    created by the Congressional Office of Diversity and Inclusion.
    Witnesses may refer to their hearing invitation materials for
    further information.
        Now I will introduce our witnesses. On Panel 1, we would
    have the Hon. Stacey E. Plaskett, the Delegate from the U.S.
    Virgin Islands. Panel 2 will have our invited witnesses: Dr.
    Daniel Immerwahr, Professor, Department of History,
    Northwestern University; Mr. Neil Weare, President, Equally
    American; the Honorable Tina Muna Barnes, Vice Speaker of the
    Guam Legislature; Professor Rose Cuison-Villazor, Professor of
    Law and Chancellor Social Justice scholar, Rutgers University;
    Dr. Peter S. Watson, President and CEO of The Dwight Group and
    former White House Director of Asian Affairs, National Security
    Council. And I want to try this, I apologize, but the Honorable
    Talauega Eleasalo Va'alele Ale, Lieutenant Governor of American
    Samoa. I hope I got that right.
        Lieutenant Governor Ale. Great job.
        Mr. Sablan. Let me remind the witnesses that under our
    Committee Rules, they must limit their oral statements to 5
    minutes, but that their entire statement will appear in the
    hearing record. When you begin, the timer will begin, and it
    will turn orange when you have 1 minute remaining. I recommend
    that Members and witnesses use ``stage view'' so they can pin
    the timer on their screen. And as we were told, we have two
    timers today that will alternate by 2 or 2:30.
        After your testimony is complete, just remember to mute
    yourself to avoid any inadvertent background noise. I will also
    allow the entire panel to testify before the questioning of the
    witnesses.
        The Chair now introduces the Hon. Stacey Plaskett, the
    Member from the U.S. Virgin Islands. Ms. Plaskett, you have 5
    minutes.

        STATEMENT OF THE HON. STACEY E. PLASKETT, A DELEGATE IN
         CONGRESS FROM THE TERRITORY OF THE U.S. VIRGIN ISLANDS

        Ms. Plaskett. Thank you so much, Mr. Chairman, and thank
    you Ranking Member Westerman and members of the Committee, as
    well as the distinguished guests. My name is Stacey Plaskett. I
    represent the Virgin Islands of the United States in the U.S.
    House of Representatives. I want to really thank you for
    holding this hearing on House Resolution 279, which would
    condemn the Insular Cases. This is a historic hearing indeed.
        More than 3.5 million U.S. citizens are denied
    constitutional rights simply because they reside in one of the
    five U.S. territories: American Samoa, Guam, the Northern
    Mariana Islands, Puerto Rico and the Virgin Islands of the
    United States. The combined populations of the territories is
    greater than that of 22 states and that of the 5 smallest
    states combined. It is the central principle of our American
    democracy that Americans through their votes can have a say in
    their government, and yet millions of Americans have almost no
    say in Federal decision making, even when it directly affects
    the islands they live on.
        At the core of the disenfranchisement of territorial
    residents are the racially charged series of Supreme Court
    decisions in the early 1900s, the Insular Cases. Prior to the
    Insular Cases, territories were viewed as inchoate states,
    areas on the path to full statehood. However, with the Insular
    Cases, the Supreme Court invented an unprecedented category of
    unincorporated territories not on the path to statehood and
    whose residents could be denied the most basic constitutional
    rights. Those decisions were explicitly informed by racial
    assumptions, with residents of the territories, as you have
    heard, described as fierce, savage, restless people who were
    ``absolutely unfit'' to be citizens as they could not
    comprehend American, Anglo-Saxon principles.
        What irony that the Supreme Court in the 1900s stated that
    Virgin Islanders such as D. Hamilton Jackson, journalist;
    Edward Wilmot Blyden, the founder of Pan Africanism; Hubert
    Harrison, one of the founders of the negro renaissance in
    Harlem; Camille Pissarro, the founder of impressionism; and
    Alexander Hamilton cannot understand Anglo-Saxon principles or
    indeed the Constitution. The irony is profound.
        It comes as no surprise that one of the most influential of
    these cases, Downes v. Bidwell, was decided by the same
    Justices who invented the separate but equal doctrine of racial
    segregation in Plessy v. Ferguson just 3 years earlier. But the
    legal basis established by Plessy was reversed in Brown v.
    Board of Education in 1954 as the Court recognized that the
    nation could not operate in a supposed separate but equal
    category, which in reality was separate and unequal. While the
    discriminatory precedent set by the Insular Cases continues to
    affect 3.5 million Americans, the Supreme Court has yet to
    revisit this precedent.
        Furthermore, the past three administrations--Trump, before
    that the Obama administration, before that the Bush
    administration--have reaffirmed this position. I call upon the
    Biden administration to chart a new course, reject the Supreme
    Court decisions in the Insular Cases and recognize the
    importance of supporting equal rights of Americans living in
    the territories.
        The ramifications of the Insular Cases extend to all
    aspects of life of U.S. citizens in the territories. Residents
    are denied access to crucial Federal support despite paying
    more in Federal taxes collectively than several states. While
    in the recent case of United States v. Vaello-Madero, the U.S.
    Department of Justice has disclaimed that the Insular Cases
    limit the application of equal protection in the territories,
    it nonetheless still continues to embrace the flawed logic that
    the Constitution applies only in part in so-called
    unincorporated territories.
        Ultimately, the ongoing discrimination against Americans in
    the territories in Federal benefit programs cannot be separated
    from the harmful legacy of the Insular Cases. This is seen in
    major disasters, in the COVID pandemic--the territories are
    extremely vulnerable.
        The Insular Cases set the precedent and created a near
    permanent colonial status. Prior to the Insular Cases, under
    the Northwest Ordinance and other doctrines, territories were
    given support, economic, population growth incentives to
    eventually become states. For us living in territories, that
    does not happen.
        The Supreme Court has left the question of the Insular
    Cases unanswered. Amicus briefs have been filed by elected
    leaders. Bipartisan requests for dismantling the cases was even
    argued in the Supreme Court by Republican-appointed Solicitors
    General Paul Clement and Ted Olson.
        This is why the House must take up and pass House
    Resolution 279 and send an official message that the Supreme
    Court's decisions in the Insular Cases are contrary to the text
    and history of the Constitution----
        Mr. Sablan. Thank you, Ms. Plaskett.
        Ms. Plaskett [continuing]. And rest on racial views.
        Thank you to the Committee, and I thank you for allowing me
    to be a co-sponsor of this resolution. As a resident of the
    Virgin Islands, it is of the utmost importance that we, as
    Members of Congress, confront our disenfranchisement.
        Thank you so much, sir, for the opportunity to speak.

        [The prepared statement of Ms. Plaskett follows:]
      Prepared Statement of the Hon. Stacey Plaskett, a Representative in
                        Congress from the Virgin Islands
        Good afternoon, Chairman Grijalva, Ranking Member Westerman,
    members of the Committee, distinguished guests. My name is Stacey
    Plaskett. I represent the Virgin Islands of the United States in the
    House of Representatives. Thank you for holding this hearing on House
    Resolution 279, the Insular Cases Resolution.
        More than 3.5 million United States citizens are denied
    constitutional rights because they reside in one of the five U.S.
    territories: American Samoa, Guam, the Northern Mariana Islands, Puerto
    Rico and the U.S. Virgin Islands. The combined population of the
    territories is greater than that of 22 states and that of the five
    smallest states combined. It is a central principle of our American
    democracy that Americans, through their votes, can have a say in their
    own governments, and yet these millions of Americans have almost no say
    in federal decision-making, even when it directly affects the islands
    they live on.
        At the core of the disenfranchisement of territory residents are
    the racially charged series of Supreme Court decisions in the early
    1900s--the Insular Cases. Prior to the Insular Cases, territories were
    viewed as inchoate states, areas on the path to full statehood.
    However, with the Insular Cases, the Supreme Court invented an
    unprecedented category of ``unincorporated'' territories not on the
    path to statehood and whose residents could be denied the most basic
    constitutional rights. Those decisions were explicitly informed by
    racial assumptions--with residents of the territories described as
    ``fierce, savage and restless people'' who were ``absolutely unfit'' to
    be citizens as they could not comprehend American, Anglo-Saxon
    principles.
        It comes as no surprise that one of the most influential of these
    cases, Downes v. Bidwell, was decided by the same Justices who invented
    the separate but equal doctrine of racial segregation in Plessy v.
    Ferguson just 3 years earlier. But the legal basis established by
    Plessy was reversed in Brown v. Board of Education in 1954 as the Court
    recognized the nation could not operate in the supposed ``separate but
    equal'' category, which in reality was separate and unequal. While the
    discriminatory precedent set by the Insular Cases continues to affect
    more than 3.5 million Americans residing in U.S. territory, the Supreme
    Court has yet to revisit this precedent. Furthermore, the past three
    administrations--Trump, Obama and Bush--have reaffirmed this position.
    I call upon this administration to chart a new course, reject the
    Supreme Court's decisions in the Insular Cases, and recognize the
    importance of supporting equal rights of Americans living in the U.S.
    territories.
        The ramifications of the Insular Cases extend to all aspects of
    life for U.S. citizens in the territories. Residents are denied access
    to crucial federal support despite paying more in federal taxes
    collectively than several of the states. While in the recent case of
    United States v. Vaello Madero, the U.S. Department of Justice has
    disclaimed that the Insular Cases limit the application of equal
    protection in the territories, it nonetheless still continues to
    embrace their flawed logic that the Constitution applies ``only in
    part'' in so-called ``unincorporated'' territories. Ultimately, the
    ongoing discrimination against Americans in the territories in federal
    benefits programs cannot be separated from the harmful legacy of the
    Insular Cases. As we have seen with the COVID-19 pandemic and recent
    major natural disasters, the territories are extremely vulnerable. This
    already precarious situation is exacerbated by delayed federal
    assistance and arbitrary formulas for infrastructure enhancement.
        The Insular Cases set this precedent--and created a near permanent
    colonial status. It was never the intent of Congress for areas of the
    United States to be a territory for 100 years except for the fact that
    these are now people of color. These are communities of people of
    color. So, based on the Insular Cases 100 years ago which said that the
    people living in the territories were people of alien races who
    couldn't understand Anglo-Saxon principles of law, that is why we were
    not able to have the full-fledged rights of American citizens.
        In the cases adjudicated following the Insular Cases, the Supreme
    Court has reaffirmed time after time that the current relationship
    between the United States and its territories--rooted in a racist,
    paternalistic basis that denies American citizens full constitutional
    rights--is acceptable. In a modern context, lower courts feel bound to
    apply the precedent established in the Insular Cases. In Tuaua v.
    United States, the Federal Government had the opportunity to address
    the sub-standard treatment of residents of territories. The premise of
    the argument presented in Tuaua v. United States was straight-forward:
    individuals born in American Samoa are labeled as a ``non-citizen
    national'' despite the Citizenship Clause of the Constitution, which
    states, ``All persons born . . . in the United States, and subject to
    the jurisdiction thereof, are citizens of the United States.'' The
    Federal Government argued that Congress has the power to exclude
    Americans born in U.S. territory from the Citizenship Clause based upon
    the doctrine established by the Insular Cases. However, the plaintiffs
    pointed to the Supreme Court's findings of Boumediene v. Bush: the
    Constitution grants Congress and the President ``the power to acquire,
    dispose of, and govern territory, not the power to decide when and
    where its terms apply.''
        The petition for Supreme Court review was denied, leaving these
    pressing questions unanswered. Amici briefs were filed by elected
    leaders and former officials of the territories, well-informed
    government officials and scholars. Instead of using this opportunity to
    address the treatment of Americans residing in U.S. Territories, the
    Supreme Court left this matter for another day.
        That is why the House must take up and pass House Resolution 279,
    and send an official message that the Supreme Court's decisions in the
    Insular Cases are contrary to the text and history of the Constitution,
    rest on racial views and stereotypes from the era of Plessy v.
    Ferguson, are contrary to our nation's most basic constitutional and
    democratic principles, and should be rejected as having no place in
    United States constitutional law. This hearing is an important step
    toward that goal. I thank Chairman Grijalva for introducing this
    legislation to address the pressing matter of the treatment of the U.S.
    territories. As a co-sponsor of this resolution and a resident of the
    U.S. Virgin Islands, it is of the utmost importance that we, as Members
    of Congress, confront the disenfranchisement of millions of Americans
    residing in the territories--most of whom are people of color. We
    deserve nothing less than the full rights of citizenship, with the full
    application of the constitutional and democratic principles of the
    United States.

                                     ______

        Mr. Sablan. Thank you very much.
        I would now like to recognize Dr. Daniel Immerwahr for 5
    minutes.

       STATEMENT OF DR. DANIEL IMMERWAHR, PROFESSOR OF HISTORY,
              NORTHWESTERN UNIVERSITY, EVANSTON, ILLINOIS

        Dr. Immerwahr. Distinguished Committee members, it is a
    pleasure to be here. I come to you as a historian of the United
    States and of U.S. foreign relations. I teach at Northwestern
    University, and I've written a book about the history of the
    United States' relations with its overseas territories. As I
    gather, you've heard already, the territories that we're
    talking about, the unincorporated territories, came to the
    United States as a result of a dramatic moment in U.S. history,
    a war with Spain in which the United States annexed the
    Philippines, Puerto Rico, and Guam from Spain and took the non-
    Spanish lands of Hawaii and American Samoa at the same time.
        Suddenly, the people in these territories accounted for 10
    percent of the U.S. population, and this prompted a set of
    political debates--Should they be citizens? Should these new
    lands be states? I think what is really important to recognize
    is that that political debate was rooted in racism. Just for a
    sort of representative sense of this, a Senator from North
    Dakota objected that if Hawaii were considered as a state, it
    would ultimately be represented by a government of ``dusky ex-
    cannibals.''
        There were two dominant positions, one an anti-imperialist
    position, which is to say that the United States in order to
    hang onto its tradition of representative government would have
    to jettison the territories. The assumption underlying that was
    that it was unthinkable that the people from the territories
    could actually be in Congress making laws.
        The other position, the imperialist position, was that the
    United States should retain the territories and jettison
    representative government in the territories, and that is
    exactly what happened. The imperialists won. The territories
    were taken and held, but they were taken and held not in the
    way that former territories had been, but forthrightly and
    explicitly as colonies where colonial rule was imposed and
    statehood blocked.
        The Insular Cases are an important artifact from that
    political moment. What they did, in essence, was to carve out
    room within the U.S. political fabric for colonies. As you've
    heard, they divided the territories into incorporated and
    unincorporated territories. This was a novel legal doctrine,
    and the bulk of the population was in the unincorporated
    category. And then the Court ruled that the Constitution didn't
    fully apply to the unincorporated territories. As one Justice
    explained it, the Constitution, yes, is the supreme law of the
    land, but the unincorporated territories are not part of the
    land.
        These legal decisions, not just the political culture
    around them, were suffused with racial ideals that strike us as
    abhorrent now. There are references in the Insular Cases to
    territorial inhabitants as savages and as ``alien races.'' One
    Justice objected that to include them within the constitutional
    fold would ``wreck our institutions perhaps leaving the whole
    structure of government to be overthrown.''
        Others have already mentioned, and I think it is really
    important to grasp, that the Justices who decided this case
    were by and large the Justices who also decided Plessy v.
    Ferguson, and that is not entirely an accident. Those two
    decisions, the Insular Cases and Plessy, have a lot in common.
    What Plessy did was to divide the country into distinct
    administrative spaces for whites and for nonwhites, and what
    the Insular Cases did was to divide the country into a
    constitutional zone and into an extra constitutional zone, or
    at least a zone where the Constitution didn't fully apply.
        The difference, of course, is that in 1954 the Supreme
    Court overturned Plessy v. Ferguson, and now we look back on it
    as one of the Court's great mistakes, something that warps the
    Constitution and deprived millions of their rights. The
    difference, of course, is that we have not yet refuted the
    Insular Cases. They are still cited, and I think it is beyond
    time that we do that.
        Thank you very much.

        [The prepared statement of Dr. Immerwahr follows:]
       Prepared Statement of Dr. Daniel Immerwahr, Professor of History,
                            Northwestern University
        Chair Grijalva and distinguished committee members:
        Thank you for the chance to testify in support of this important
    measure. I am a professor of U.S. history at Northwestern University,
    and I've written a book about the United States' overseas territory. I
    would like to fill in the history of the Insular Cases and the
    ``territorial incorporation doctrine'' they established. Plainly put,
    that doctrine was the result of open racism.
        The Insular Cases followed a war the United States fought with
    Spain in 1898. In that war, the United States took three of Spain's
    colonies--Puerto Rico, the Philippines, and Guam--and it claimed, at
    the same moment, Hawai`i and American Samoa. The United States had
    expanded before, but it had never taken in anywhere near this number of
    people--almost 9 million in all. The inhabitants of these new
    acquisitions comprised about 10 percent of the U.S. population.
        This massive, unprecedented influx raised immediate questions.
    Would the new residents be citizens? Would they be able to vote? Would
    their territories become states? Such questions prompted a loud
    political debate.

        That debate was rooted in racism. The new territories were full of
    nonwhite people (even Spanish-descended Puerto Ricans were classified
    as nonwhite in the United States). Were the new territories treated as
    the older ones had been, the result would be Filipinos, Puerto Ricans,
    Native Hawaiians, Chamorus, and Samoans in the Senate and House, voting
    on laws. Leading politicians shared an understanding that this was
    wholly unacceptable. One senator warned that Hawai`i, if made a state,
    ``would be represented by the country of dusky ex-cannibals.'' \1\
    ---------------------------------------------------------------------------
        \1\ William Roach of North Dakota, quoted in Eric T.L. Love, Race
    over Empire: Racism and U.S. Imperialism, 1865-1900 (Chapel Hill:
    University of North Carolina Press, 2004), 150.

        With that possibility ruled out, there were two main positions
    left. Anti-imperialists argued that for the United States to protect
    its tradition of representative government, it would have to relinquish
    the territories. Imperialists, on the other hand, argued that for the
    United States to retain its territories, it would have to relinquish
    representative government. The new territories should be ruled as
    ---------------------------------------------------------------------------
    colonies, the United States should be an empire.

        That is what happened. The United States annexed the territories
    but didn't grant them statehood, despite their large populations.
    (Hawai`i, the only 1898 acquisition to become a state, had to wait more
    than six decades.) In place of representative government, the United
    States imposed colonial rule.

        The Insular Cases are an enduring artifact from that political
    moment. In them, the Supreme Court introduced a novel distinction
    between ``incorporated'' and ``unincorporated'' territories and ruled
    that the Constitution did not fully extend to the latter. As one
    justice summarized the logic, the Constitution was ``the supreme law of
    the land'' but the unincorporated territories were ``not part of `the
    land.' '' \2\ The reasoning was straightforwardly racist; justices
    referred to the inhabitants of the overseas territories as ``savages''
    and ``alien races.'' \3\ Including them within the constitutional fold,
    one warned, would ``wreck our institutions,'' perhaps leading the
    ``whole structure of the government'' to be ``overthrown.'' \4\ As a
    result, inhabitants of the unincorporated territories have lacked
    rights, including a constitutional right to citizenship.
    ---------------------------------------------------------------------------
        \2\ Dorr v. United States, 195 U.S. 138, 155 (1904) (Harlan, J.,
    dissenting).
        \3\ Downes v. Bidwell, 182 U.S. 244, 251 and 287 (1901).
        \4\ Downes, 182 U.S. at 313 (White, J., concurring).

        The justices who decided the first Insular Cases were largely the
    same justices who decided Plessy v. Ferguson, the infamous ruling that
    sanctified Jim Crow by allowing ``separate but equal'' facilities for
    whites and nonwhites. Plessy divided the country into distinct
    administrative spaces, consigning some citizens--literally and
    metaphorically--to the back of the bus. The Insular Cases did something
    similar, dividing the country into two zones, one covered fully by the
    Constitution, the other not. The Insular Cases relegated millions to
    ---------------------------------------------------------------------------
    the back of the constitutional bus.

        The difference is that, in 1954, with Brown v. Board of Education,
    the Supreme Court overturned Plessy. We now regard Plessy as one of the
    Court's greatest mistakes--an infamously racist ruling that deprived
    millions of their rights. By contrast, the country has not yet
    repudiated the Insular Cases. It's time we do.

        Thank you.

                                     ______

     Questions Submitted for the Record to Dr. Daniel Immerwahr, Professor
                      of History, Northwestern University
                  Questions Submitted by Representative Sablan

        Question 1. How may a change in the territorial incorporation
    doctrine affect various territories differently?

        Answer. As I read it, this is a question about law. I am a
    historian, not a legal expert, so I am not qualified to fully answer
    Rep. Sablan's question. But I can say that, in the past, Congress has
    claimed enormous discretion in governing the territories, independent
    of the territorial incorporation doctrine, under the territorial clause
    of the Constitution. It has advanced some incorporated territories to
    statehood quickly and held others as territories indefinitely. Compare
    the fates of California, which became a state two years after
    annexation, to that of present-day Oklahoma, whose land was held as
    non-state territory for more than a century before statehood (and which
    was known for most of that time as ``Indian Territory''). Neither
    California nor present-day Oklahoma was unincorporated, so the
    territorial incorporation doctrine as established by the Supreme Court
    in the Insular Cases did not apply. If we are to take historical
    precedent as a guide, then changing or rejecting the territorial
    incorporation doctrine would not prevent Congress from treating
    different territories differently.

                                     ______

        Mr. Sablan. Thank you very much, Professor.
        At this time, I'd like to recognize Lieutenant Governor Ale
    from American Samoa for 5 minutes.

         STATEMENT OF THE HON. TALAUEGA ELEASALO VA'ALELE ALE,
     LIEUTENANT GOVERNOR, AMERICAN SAMOA, PAGO PAGO, AMERICAN SAMOA

        Lieutenant Governor Ale. Good afternoon, Chairman, Ranking
    Member, Members of Congress, the Committee. On behalf of
    Governor Lemanu Mauga and myself, I bring greetings from the
    people and government of American Samoa. Talofa, Talofa Lava.
    And thank you for the opportunity to appear before you today to
    share our strong opposition to the proposed Insular Cases
    Resolution, House Resolution 279.
        This measure, while well-intended and perhaps justified in
    certain circumstances, is in our view a blunt instrument that
    will only hasten the destruction of unique cultures within the
    U.S. territories and insular areas, and it will destroy the
    right of the people of American Samoa to democratic self-
    determination.
        Currently, the people of American Samoa have a degree of
    self-determination and a voice and a way of protecting our
    culture and way of life. This arrangement preserves our
    traditional Samoan way of life, or fa'a Samoa, including
    communal land ownership, cultural traditions like prayer
    curfews, and that most of our islands' lands should stay in the
    hands of persons with Samoan ancestry.
        American Samoa has been a U.S. territory since 1900.
    However, we are not U.S. citizens but, rather, non-citizen U.S.
    nationals. We cannot vote or run for office in the incorporated
    United States or hold certain government positions. There is a
    unique difference between American Samoa and the other U.S.
    territories of Guam, the Commonwealth of Northern Marianas,
    Puerto Rico, and the Virgin Islands. We are not, as I said,
    citizens, and we would like the decision on whether we become
    citizens to be decided not by a court but by the people of
    American Samoa and its elected leaders.
        In December 2019, District Court Judge Clark Waddoups in
    the Utah District made that decision for American Samoa. He
    decided that American Samoans should be birthright citizens of
    the United States done with no involvement whatsoever by the
    local people of American Samoa or its elected leaders.
        Now, ending the application of the Insular Cases as
    proposed in this resolution, as I said earlier, may well be the
    right thing to do with other territories. All of these other
    territories have taken this step to democratic self-
    determination and have decided their future. American Samoa has
    not. American Samoa still has to make that decision, and
    eliminating, wiping out the infrastructure or the structure
    prepared in the Insular Cases on how the Constitution should be
    applied to U.S. territories will destroy the right of American
    Samoan people to take that important step and decide for itself
    democratically whether it wants to be U.S. citizens or not.
        Our voice and our message has always been clear. We want
    our political status and our rights under territorial law to be
    decided by our people, our elected leaders, local, federal. We
    do not want to have court decide the fate of our people as it
    was done resulting in the Insular Cases. Congress has the right
    to do so, and we ask that Congress address the ailments that
    are affecting other territories making them want to destroy and
    wipe out the Insular Cases.
        Now, let me be clear. We support the intent of the
    resolution to repudiate the racist and shameful attitudes
    depicted in the Insular Cases. However, we believe that to
    completely wipe it out is incorrect. These cases have been
    condemned by courts and been condemned by Congress, but to
    completely eliminate, as I said earlier, is a blunt instrument.
        The people of American Samoa are proud to be part of the
    U.S. Government and are proud of our heritage of supporting the
    U.S. military and being part of the U.S. family. However, we
    believe a core principle of our unity, of our relationship, is
    the protection of the rights of people to decide democratically
    how they want to live.
        Mr. Chairman and members of the Committee, thank you for
    the opportunity to be here and to testify on this important
    resolution, and I would submit for the record letters from
    Governor Lemanu Mauga and myself to our counterparts regarding
    these issues. Thank you very much.
        Mr. Sablan. Without objection so ordered.

        [The prepared statement of Lieutenant Governor Ale
    follows:]
        Prepared Statement of the Hon. Talauega Eleasalo Va'alele Ale,
                      Lieutenant Governor, American Samoa
        Good afternoon Chairman Grijalva, Ranking Member Westerman and
    Members of the Committee. On behalf of Governor Lemanu Mauga and
    myself, I bring greetings from the people and government of American
    Samoa. Talofa, Talofa Lava. Thank you for the opportunity to appear
    before you today to share our strong opposition to the proposed
    ``Insular Cases Resolution--House Resolution 279.'' This measure, while
    well-intended and perhaps, in some circumstances justified, is a blunt
    instrument that will not only hasten the destruction of unique cultures
    within U.S. Territories and Insular Areas, it will destroy the right of
    the people of American Samoa to democratic self-determination.
        Currently the people of American Samoa have a degree of self-
    determination and have a voice and a way of protecting our culture and
    way of life. This arrangement preserves our traditional Samoan way of
    life, or fa'a Samoa, including communal land ownership, cultural
    traditions like prayer curfews, and that most of our islands' lands
    should stay in the hands of persons with Samoan ancestry.

        American Samoa has been a U.S. territory since 1900. However, we
    are not U.S. citizens, but rather non-citizen U.S. nationals. We cannot
    vote or run for office in the incorporated U.S. or hold certain U.S.
    government positions. There is a unique difference between American
    Samoa and the other U.S. territories in that those persons native to
    Guam, the Commonwealth of the Northern Mariana Islands, Puerto Rico,
    and the Virgin Islands become U.S. citizens at birth pursuant to
    Congressional action.

        In December 2019, U.S. District Court Judge Clark Waddoups in the
    Utah District tried to change our non-citizen U.S. national status,
    ruling that American Samoans should also have birthright citizenship.
    This decision was made without our people in American Samoa voting on
    the issue or exercising our right to self-determination. Persons born
    in American Samoa currently have a path to U.S. citizenship, an
    expedited path if they leave American Samoa and reside in the United
    States.

        Ending application of the Insular Cases, as proposed in H.R. 279,
    may well be the correct course for some territories. That could include
    territories that have democratically self-determined that the status of
    the people under the law of the Insular Cases is intolerable, and must
    end immediately by legal mandate without agreed terms or conditions
    that define a new status other than unincorporated territory.

        That is not the case for American Samoa. Each territory has a voice
    through the local territorial government and a voice in Congress to
    inform and assist Congress in the exercise of its powers to provide for
    local self-government in the territories under Article IV, Section 3,
    Clause 2 of the U.S. Constitution.

        Our voice and our message are extremely clear: We want any change
    in our political status and rights under federal territorial law to be
    decided by elected leaders in the local government, our people and our
    elected representative in Congress and fellow Members of Congress, not
    by unelected federal judges who we have no voice in nominating or
    confirming, who handed down the Insular Cases the last time Congress
    deferred to the courts on the question of political status of
    territories in 1901.

        Accordingly, we support the intent of the resolution to repudiate
    the expression of racist attitudes by justices of the U.S. in the
    Insular Cases. However, we believe all lawsuits and cases in the
    Federal courts in which the actual law of the Insular Cases is being
    challenged should be decided on the merits consistent with the U.S.
    Constitution, law, evidence, and facts presented in court.

        This is imperative and critical for American Samoa because of
    pending litigation in which the courts are being asked to change the
    political status of the people of American Samoa under Federal law,
    without local democratic self-determination supporting outcomes of
    litigation that are unpredictable and/or unwanted.

        I understand why lawyers representing plaintiffs in the lawsuit
    involving U.S. birthright citizenship for persons born in American
    Samoa, would like Congress and the Department of Justice to be unable
    to consider the history and meaning of the Insular Cases in
    adjudicating currently pending cases. That could mean the lawyers for
    clients who want court-ordered political status changes would prevail,
    because there would be less U.S. Supreme Court case law to oppose
    plaintiffs' legal positions.

        That is why lawyers are aligned with other special interest groups
    in current pending cases. These special interest groups have lost past
    lawsuits, and now are asking Congress to change existing U.S.
    territorial law, based on racist attitudes expressed by judges 120
    years ago, when the vast majority of Americans and the U.S. as a nation
    were openly engaged in systemic racism.

        We have no objection to repudiating the racist and immoral views
    adopted in the Insular Cases. Indeed, we join our fellow Territories in
    doing so today. What we oppose is the wholesale rejection of these
    cases because we believe such an action will have a lasting impact on
    the underlying structure of our political relationship with the U.S.--
    the right of self-determination and consent of the governed.

        Each U.S. Territory is unique, and any new legislation should
    recognize the history of the individual territories and their
    relationship with the U.S. and Congress. A ``one size fits all''
    approach will not work.
        American Samoa as an example:

         We are the only one of the five insular territories that
                did not come under U.S. sovereignty as a result of conquest
                of or sale by a European or Asian power;

         We are the only territory that controls its own
                immigration and customs systems;

         We are the only territory that selects part of its
                legislature through customary means;

         We are the only territory that prohibits the alienation of
                most of its lands;

         We are the only territory whose residents are not
                automatically U.S. citizens at birth and prefer to keep it
                that way.

         We believe being patriotic non-citizen U.S. nationals is
                not a second-class status but a unique first-class status.
                Despite not being U.S. citizens, American Samoa has the
                highest enlistment rate in the U.S. military of any of the
                U.S. states or territories.

        I would like to submit for the record letters from Governor Lemanu
    Mauga and myself to our counterparts in other insular territories
    asking them not to support or endorse efforts to deny self-
    determination and force reclassification of U.S. nationals in American
    Samoa as U.S. ``citizens'' without consent of our people. I understand
    our legislature will take up a resolution to the same effect when it
    meets in its next regular session.

        Thank you again, Mr. Chairman, and Members of the Committee for
    allowing me to speak for my people on this important matter.

                                     ______

    Submissions for the Record by Lt. Governor Ale

                                 OFFICE OF THE GOVERNOR
                                      AMERICAN SAMOA GOVERNMENT

                                                         March 19, 2021

    The Honorable Ralph DLG Torres, Governor
    Commonwealth of the Northern Mariana Islands
    Caller Box 10007
    Saipan, MP 96950

        Dear Governor Torres:

        As I am certain you are aware, several organizations and media
    outlets have been advocating national voting rights for territories.
    There is a case pending before the 10th Circuit Court of Appeals,
    Fitisemanu v. United States, which, as a precursor to national voting
    rights, would impose U.S. citizenship on America Samoa, where most of
    our people are U.S. Nationals. I am writing you today to advise you
    that the majority of our people prefer to maintain our status as
    Nationals and ask that you not support any efforts to impose
    citizenship on us by court fiat.

        When approached by one group to support the plaintiffs in this
    court case, Guam Governor Leon Guerrero declined to insert herself in
    an issue that has nothing to do with Guam. I sincerely appeal to you to
    follow her example, because as she recognized, this is a fundamental
    issue of self-determination. My administration as well as that of my
    predecessor and our Congresswoman as well as her predecessor have
    joined the federal government in opposing the Fitisemanu case being
    considered by the Denver court.

        To be clear, that court case seeks to usurp the power of Congress
    and asks the court to unilaterally declare all U.S. Nationals to be
    U.S. Citizens regardless of where they reside or whether or not they
    have sought citizenship. In an almost identical case, the D.C. Circuit
    Court of Appeals already ruled favorably for us on this same issue, and
    the Supreme Court declined to consider it further. Regrettably, the
    District Court that heard the Fitisemanu case ignored this precedent.

        If the 10th Circuit were to uphold the Utah District Court, it
    would set a precedent that would be dangerous to all the territories by
    diminishing the power of Congress--where we all are represented--to
    determine the status of territories as provided by the U.S.
    Constitution. Congress in the past has statutorily considered and
    passed legislation to grant citizenship to the other territories with
    input from those territories and has sought the views and consent of
    the people residing there, but that would not be the case here.

        American Samoa asks only for that same consideration. We have
    indicated to the Court that it is American Samoa's preference to
    determine for ourselves the question of citizenship and leave it to
    Congress in consultation with us to determine such basic rights.

        Our forebears negotiated an agreement with the United States that
    protects our lands and customs that we have found satisfactory to date
    and which we wish to continue until such time as the people who live
    here feel differently.

        Therefore, I once again ask you to rebuff any entreaties for you to
    support ``equality'' for territorial voters if it violates our
    passionate devotion to self-determination. I believe that the issues
    confronting Nationals in Utah can best be resolved by passage of H.R.
    1941, which would expedite reclassification of national to citizen to
    anyone who chooses it, and I am pleased that many of the territorial
    Members of the U.S. House of Representatives have already co-sponsored
    our Congresswoman's bill. Thank you for your consideration.

                Sincerely,

                                             Lemanu P.S. Mauga,
                                                               Governor

                                     ______

                                 OFFICE OF THE GOVERNOR
                                      AMERICAN SAMOA GOVERNMENT

                                                         March 19, 2021

    The Honorable Pedro Pierluisi, Governor
    Government of Puerto Rico
    P.O. Box 9020082
    San Juan, PR 00902-0082

        Dear Governor Pierluisi:

        As I am certain you are aware, several organizations and media
    outlets have been advocating national voting rights for territories.
    There is a case pending before the 10th Circuit Court of Appeals,
    Fitisemanu v. United States, which, as a precursor to national voting
    rights, would impose U.S. citizenship on America Samoa, where most of
    our people are U.S. Nationals. I am writing you today to advise you
    that the majority of our people prefer to maintain our status as
    Nationals and ask that you not support any efforts to impose
    citizenship on us by court fiat.

        When approached by one group to support the plaintiffs in this
    court case, Guam Governor Leon Guerrero declined to insert herself in
    an issue that has nothing to do with Guam. I sincerely appeal to you to
    follow her example, because as she recognized, this is a fundamental
    issue of self-determination. My administration as well as that of my
    predecessor and our Congresswoman as well as her predecessor have
    joined the federal government in opposing the Fitisemanu case being
    considered by the Denver court.

        To be clear, that court case seeks to usurp the power of Congress
    and asks the court to unilaterally declare all U.S. Nationals to be
    U.S. Citizens regardless of where they reside or whether or not they
    have sought citizenship. In an almost identical case, the D.C. Circuit
    Court of Appeals already ruled favorably for us on this same issue, and
    the Supreme Court declined to consider it further. Regrettably, the
    District Court that heard the Fitisemanu case ignored this precedent.

        If the 10th Circuit were to uphold the Utah District Court, it
    would set a precedent that would be dangerous to all the territories by
    diminishing the power of Congress--where we all are represented--to
    determine the status of territories as provided by the U.S.
    Constitution. Congress in the past has statutorily considered and
    passed legislation to grant citizenship to the other territories with
    input from those territories and has sought the views and consent of
    the people residing there, but that would not be the case here.

        American Samoa asks only for that same consideration. We have
    indicated to the Court that it is American Samoa's preference to
    determine for ourselves the question of citizenship and leave it to
    Congress in consultation with us to determine such basic rights.

        Our forebears negotiated an agreement with the United States that
    protects our lands and customs that we have found satisfactory to date
    and which we wish to continue until such time as the people who live
    here feel differently.

        Therefore, I once again ask you to rebuff any entreaties for you to
    support ``equality'' for territorial voters if it violates our
    passionate devotion to self-determination. I believe that the issues
    confronting Nationals in Utah can best be resolved by passage of H.R.
    1941, which would expedite reclassification of national to citizen to
    anyone who chooses it, and I am pleased that many of the territorial
    Members of the U.S. House of Representatives have already co-sponsored
    our Congresswoman's bill. Thank you for your consideration.

                Sincerely,

                                             Lemanu P.S. Mauga,
                                                               Governor

                                     ______

                                 OFFICE OF THE GOVERNOR
                                      AMERICAN SAMOA GOVERNMENT

                                                         March 19, 2021

    The Honorable Albert Bryan Jr., Governor
    U.S. Virgin Islands
    5047 (21-22) Kongens Gade
    St. Thomas, VI 00802-6487

        Dear Governor Bryan:

        As I am certain you are aware, several organizations and media
    outlets have been advocating national voting rights for territories.
    There is a case pending before the 10th Circuit Court of Appeals,
    Fitisemanu v. United States, which, as a precursor to national voting
    rights, would impose U.S. citizenship on America Samoa, where most of
    our people are U.S. Nationals. I am writing you today to advise you
    that the majority of our people prefer to maintain our status as
    Nationals and ask that you not support any efforts to impose
    citizenship on us by court fiat.

        When approached by one group to support the plaintiffs in this
    court case, Guam Governor Leon Guerrero declined to insert herself in
    an issue that has nothing to do with Guam. I sincerely appeal to you to
    follow her example, because as she recognized, this is a fundamental
    issue of self-determination. My administration as well as that of my
    predecessor and our Congresswoman as well as her predecessor have
    joined the federal government in opposing the Fitisemanu case being
    considered by the Denver court.

        To be clear, that court case seeks to usurp the power of Congress
    and asks the court to unilaterally declare all U.S. Nationals to be
    U.S. Citizens regardless of where they reside or whether or not they
    have sought citizenship. In an almost identical case, the D.C. Circuit
    Court of Appeals already ruled favorably for us on this same issue, and
    the Supreme Court declined to consider it further. Regrettably, the
    District Court that heard the Fitisemanu case ignored this precedent.

        If the 10th Circuit were to uphold the Utah District Court, it
    would set a precedent that would be dangerous to all the territories by
    diminishing the power of Congress--where we all are represented--to
    determine the status of territories as provided by the U.S.
    Constitution. Congress in the past has statutorily considered and
    passed legislation to grant citizenship to the other territories with
    input from those territories and has sought the views and consent of
    the people residing there, but that would not be the case here.

        American Samoa asks only for that same consideration. We have
    indicated to the Court that it is American Samoa's preference to
    determine for ourselves the question of citizenship and leave it to
    Congress in consultation with us to determine such basic rights.

        Our forebears negotiated an agreement with the United States that
    protects our lands and customs that we have found satisfactory to date
    and which we wish to continue until such time as the people who live
    here feel differently.

        Therefore, I once again ask you to rebuff any entreaties for you to
    support ``equality'' for territorial voters if it violates our
    passionate devotion to self-determination. I believe that the issues
    confronting Nationals in Utah can best be resolved by passage of H.R.
    1941, which would expedite reclassification of national to citizen to
    anyone who chooses it, and I am pleased that many of the territorial
    Members of the U.S. House of Representatives have already co-sponsored
    our Congresswoman's bill. Thank you for your consideration.

                Sincerely,

                                             Lemanu P.S. Mauga,
                                                               Governor

                                     ______

        Mr. Sablan. I would now like to recognize the Honorable
    Tina Muna Barnes, Vice Speaker of the Guam Legislature. Ms.
    Barnes, you have 5 minutes.

      STATEMENT OF THE HON. TINA MUNA BARNES, VICE SPEAKER, GUAM
                       LEGISLATURE, HAGATNA, GUAM

        Ms. Barnes. Hafa Adai. My name is Tina Rose Muna Barnes. I
    am the Vice Speaker of the 36th Guam Legislature. My committee
    recently held a public hearing on Resolution 56-36, a measure I
    introduced in support of House Resolution 279. My testimony
    today is in part based on the testimony presented before my
    committee.
        I would like to begin by expressing thank you and Un
    Dangkolo Na Si Yu'os Ma'ase to Chairman Grijalva and Vice
    Chairman Gregorio Kilili Sablan for authoring House Resolution
    279. Today, I will be discussing the injustices of the Insular
    Cases on the people of Guam and our sister territories. I ask
    that my full written testimony, as well as the Guam
    Legislature's Committee Report on Resolution 56-36, be entered
    into the record.
        Mr. Sablan. So ordered.
        Ms. Barnes. Thank you. My grandfather is the late Colonel
    Juan Muna, for whom the Guam National Guard's Headquarters
    bears his name to honor his contributions to the U.S. Armed
    Forces during World War II. I am also the proud wife of an Air
    Force veteran, the mother of an Air Guardsman, mother-in-law of
    an Air Guard veteran and a grandmother-in-law of a deployed
    Army soldier, a level of patriotism and service shared by many
    on Guam.
        As a daughter of Guam, I am grateful that this conversation
    is moving forward, but frustrated that this has taken so long.
    While this resolution sends a strong message, Congress can do
    more. It always could. Its plenary powers allow Congress to
    tailor make a binding political status process unique to each
    territory. You all have made notable strides by temporarily
    raising our Medicaid allotments and increasing the Federal
    Medicaid rate through the Fiscal Year 2020 Appropriations and
    the Families First Coronavirus Response Act, but they are
    temporary measures set to expire.
        While I am also grateful for the numerous relief packages
    passed by this body and the continued advocacy of Guam's
    Delegate, Congressman Mike San Nicolas, I echo Governor Lourdes
    Leon Guerrero's sentiment that ``this high match requirement
    has prevented us from availing of much-needed federal funds.''
        The unequal treatment of the territories has also prevented
    American citizens from availing of Federal programs they
    otherwise would have access to if they lived in a state. To
    challenge this unfair policy, Ms. Katrina Schaller of Guam
    filed a lawsuit in the District Court of Guam in December 2018.
    Katrina and her twin sister Leslie both live with myotonic
    dystrophy, which severely inhibits muscle function and other
    critical aspects of daily life. Leslie is able to live
    independently in Pennsylvania due to the aid she receives from
    SSI. Katrina, however, is ineligible for the same benefits by
    virtue of her geographic location.
        Attorney Rodney Jacob, who serves as Katrina's counsel,
    testified, ``It is contrary to common sense, human decency, and
    sound public policy to deny public benefits to all other
    American citizens with disabilities living on Guam.'' As a
    result of this injustice and at the request of my good
    colleague, Senator Mary Camacho Torres, I amended my resolution
    to seek parity on this matter. Senator Torres and I may hail
    from different political parties, but for the benefit of our
    people, we can work together. I hope you all share the same
    desire.
        To be clear, I echo the testimony submitted by Attorney
    Julian Aguon that the rejection of the Insular Cases must be
    carefully approached and cannot be America's justification for
    its relationship with the territories. We must also acknowledge
    our right to self-determination.
        In closing, I come before you today as an island leader, a
    proud American, and a daughter of Guam, on behalf of Guam's
    people and their contributions to this Nation. What I ask for
    is simple, and yet it has been the long struggle of this great
    nation. I ask that every American be equally American wherever
    we might live and that each of us be given the chance to
    manifest our own destiny.
        On behalf of the people of Guam, thank you, Mr. Chairman.
    Si Yu'us ma'ae'.

        [The prepared statement of Ms. Barnes follows:]
     Prepared Statement of Tina Rose Muna Barnes, Vice Speaker, 36th Guam
                                  Legislature
        Hafa Adai! My name is Tina Rose Muna Barnes, and I am the Vice
    Speaker of the 36th Guam Legislature. My Committee held a public
    hearing last week on Resolution 56-36, a measure I introduced in
    support of House Resolution 279. My testimony today is, in part, based
    on the testimony presented before my Committee.
        First and foremost, I would like to express my heartfelt thank you
    and Un Dangkolo Na Si Yu'os Ma'ase (thank you) to Chairman Grijalva and
    Vice Chairman Gregorio Kilili Sablan for their leadership in authoring
    House Resolution 279 along with its many co-sponsors and for convening
    this hearing.
        My grandfather is the late Colonel Juan Muna, for whom the Guam
    National Guard's Headquarters, Fort Juan Muna, bears his name to honor
    his contributions to the U.S. Armed Forces during World War II. I am
    also the proud wife of an Air Force Veteran, the mother of an Active-
    Duty Air Guardsman, mother-in-law of an Air Guard Veteran, and lastly a
    grand-mother-in-law of a deployed Army Soldier.
        As you may recall, when COVID-19 swept our nation, and made its way
    onto the USS Theodore Roosevelt, the people of Guam responded to
    protect the lives of thousands of sailors who took an oath to protect
    both you and me.\1\ Yes, there was fear and anxiety within our
    community as we took extraordinary action to help the TR and eliminate
    any further spread into our community. We did so because our ancestors
    taught us the Ancient CHamoru spirit of Inafa'maolek, where we must
    step up, when our community is in need--it's literal definition means
    ``to make good.'' \2\ At that time, it was not the people of Guam vs.
    the U.S. Navy, it was the people of Guam alongside our fellow
    Americans, for our fellow Americans.
    ---------------------------------------------------------------------------
        \1\ Baldor, Lolita C. ``Carrier Theodore Roosevelt, Sidelined in
    Guam by Coronavirus, Heads Back to Sea This Week.'' The Assosciated
    Press, 19 May 2020.
        \2\ Perez-Iyechad, Lilli. ``Inafa'Maolek: Striving for Harmony.''
    Guampedia.
    ---------------------------------------------------------------------------
        What makes me proud to call myself an American, is the fact that
    the country is capable of recognizing its past mistakes, and it can
    take action to make amends to those who were harmed or negatively
    impacted. Today, House Resolution 279, which calls the Insular Cases
    racist, undemocratic, unconstitutional, unAmerican, and having no place
    in the America we know and love, is the first and important step to
    make amends and heal the millions of our fellow Americans who have been
    impacted by the decisions and harmful language used by the U.S. Supreme
    Court. As my good friend, Senator Paul Strauss, who is DC's Shadow
    Senator to the U.S. Senate testified last week,\3\ House Res. 279
    ``express(es) the overdue opinion that the racist ideology expressed in
    the Insular Cases is an idea that belongs on the dustbin of history,
    along with so many other terrible, racist ideas--be it slavery, racial
    segregation, Jim Crow laws, fascism, and the types of discrimination on
    the basis of religion and other ideologies that no longer deserve a
    place in 21st century, civilized society.''
    ---------------------------------------------------------------------------
        \3\ Strauss, Paul. ``Testimony on Resolution 56-36 (COR).'' 36th
    Guam Legislature. Hagatna, Guam. 5 May 2021. Testimony.
    ---------------------------------------------------------------------------
        But we can't stop there. This resolution, as the panel of leading
    legal experts testified at my hearing stated, it sends a strong
    message, but is non-binding on the courts. We cannot call ourselves the
    land of the free, but allow the Insular Cases to set the precedence of
    jurisprudence. I would like to reflect on the testimony of your former
    colleague, my former Congressman and former President of the University
    of Guam, Dr. Robert Underwood.\4\ We are taking the first step by
    calling the Insular Cases for what it is, but this is where I need your
    help. As a local lawmaker, I cannot single-handedly change the
    relationship between the United States and its Unincorporated
    Territory. Members of this Committee, I humbly urge you to exercise the
    Plenary Powers granted to you, to make right by the people of Guam.
    ---------------------------------------------------------------------------
        \4\ Underwood, Robert. ``Testimony on Resolution 56-36 (COR).''
    36th Guam Legislature. Hagatna, Guam. 5 May 2021. Testimony.
    ---------------------------------------------------------------------------
        You all have made strides, by temporarily granting Guam parity with
    our fellow Americans by raising our Medicaid allotments \5\ and
    increasing the federal Medicaid rates, through the FY 2020
    appropriations and the Families First Coronavirus Relief Act. But these
    are temporary and set to expire. While I am also grateful for the
    numerous relief packages passed by this body, and the continued
    advocacy of Guam's Delegate, Mr. San Nicolas, the requirement for a
    local match, in a time where our main economic driver, tourism, is at a
    standstill, I echo our Governor Lourdes Leon Guerrero's sentiments that
    ``this high match requirement has prevented us from availing of much-
    needed federal funds.'' \6\
    ---------------------------------------------------------------------------
        \5\ Medicaid and CHIP Payment and Access Commission. Medicaid and
    CHIP in Guam. Washington, DC, 2021. Print.
        \6\ Leon Guerrero, Lourdes. Letter to Gretchen Sierra-Zorita. 5 May
    2021. Brief on Significant Federal Policies Affecting Guam. Hagatna,
    Guam.
    ---------------------------------------------------------------------------
        I also had the honor of hearing from Attorney Rodney Jacob, who
    hails from Chairman Grijalva's District in Arizona and represented
    Katrina Schaller in the District Court of Guam. Ms. Katrina Schaller of
    Barrigada, Guam, filed a lawsuit in the District Court of Guam in
    December 2018. Katrina and her twin sister Leslie Schaller both live
    with myotonic dystrophy, which severely inhibits muscle function and
    other critical aspects of daily life. Leslie is able to live
    independently in Pennsylvania due to the aid she receives from SSI.
    Katrina however is ineligible for the same SSI benefits received by her
    twin simply by virtue of her geographic location.
        As Attorney Rodney Jacob, who serves as Katrina Schaller's counsel,
    eloquently stated: ``It is contrary to common sense, human decency, and
    sound public policy to deny public benefits to all other American
    citizens with disabilities living on Guam.'' \7\ While Katrina won her
    case in the U.S. District Court of Guam last June, the U.S. Federal
    Government has appealed to the Ninth Circuit, which has paused the case
    pending the outcome of a similar case from Puerto Rico, which will be
    heard by the U.S. Supreme Court. As a result of this shocking
    injustice, and at the request of my good colleague, Senator Mary
    Camacho Torres,\8\ who is the daughter of Guam's first elected
    Republican Governor, and founder of the Republican Party of Guam, I was
    honored to amend my resolution to seek parity on this matter. Senator
    Torres and I may hail from different political parties, but for our
    People, we can work together. I hope you all share this same desire.
    ---------------------------------------------------------------------------
        \7\ Jacob, Rodney. ``Testimony on Resolution 56-36 (COR).'' 36th
    Guam Legislature. Hagatna, Guam. 5 May 2021. Testimony.
        \8\ Torres, Mary Camacho. Letter to Vice Speaker Muna Barnes. 7 May
    2021. Suggested Language Relative to SSI Inclusion in Resolution No.
    56-36 (COR) Hagatna, Guam.
    ---------------------------------------------------------------------------
        Going back to the testimony of Dr. Underwood, and echoed by our
    Governor, the Legal Scholars, and Community Advocates, I would like to
    humbly further request this committee, that Congress further exercise
    its Plenary Powers to begin the process to correct this wrong. Congress
    could begin the process of creating a binding political status
    reconciliation process tailored for each Territory. I am a proud
    daughter of Guam, but I while I prefer a closer relationship with the
    United States, I believe that we must begin this conversation, will all
    of you here today, and all those who live on Guam, so that we can
    figure out our future, and not push this issue under the rug.
        I also received testimony from human rights lawyer and law scholar
    Julian Aguon,\9\ whose support for H. Res. 279 was far more qualified
    than the other legal experts. While he denounces the racist and
    imperialist origins of the Insular Cases, Attorney Aguon argues that
    they nevertheless provide the basic analytical framework that later
    federal courts have used to protect the indigenous peoples of the
    territories, in particular the peoples of the CNMI and American Samoa.
    He argues that in certain cases, like Wabol v. Villacrusis and Tuaua v.
    United States, the Insular Cases were not used as a sword (against the
    peoples of the territories) but instead as a shield (to protect their
    lands, cultures, and self-determination). For instance, for all its
    flaws, the impracticable and anomalous test, which developed out of the
    doctrinal flexibility created by the Insular Cases, has been used to
    ward off challenges to things like ancestry-based land alienation
    restrictions. Without the doctrinal space created by these cases,
    programs like these would have almost certainly been struck down. In
    sum, Attorney Aguon argues that in our zeal to condemn these cases, we
    can't ignore the fact that in more recent times they have been
    repurposed to benefit the indigenous peoples in the territories.
    Finally, Attorney Aguon argues that until we are willing to do the much
    harder work of reconstruction (that is, establishing an alternative
    doctrinal path to protect the indigenous peoples of the territories),
    just denouncing the Insular Cases is not nearly enough.
    ---------------------------------------------------------------------------
        \9\ Aguon, Julian. ``Testimony on Resolution 56-36 (COR).'' 36th
    Guam Legislature. Hagatna, Guam. 10 May 2021. Written Testimony.
    ---------------------------------------------------------------------------
        In closing, I would like to reflect on the U.S. Navy Report on
    Guam. It outlines that the Navy was tasked with being the Administrator
    of Guam, simply because of our Geographical location, and its
    importance to the Navy. The Navy outlined its mission in a tone similar
    to the Insular Cases, by stating that ``In a little less than 49 years
    the Naval administration of Guam had guided a people from illiteracy,
    peonage, and apathy to where in conservative estimate and appraisal, it
    had been educated to accept and intelligently to discharge the
    responsibilities (as well as the privileges) of citizenship.\10\
    ---------------------------------------------------------------------------
        \10\ United States. Dept. of the Navy. Office of the Chief of Naval
    Operations. U.S. Navy Report on Guam 1899-1950. U.S. Government
    Printing Office. Washington, DC. 1951. Print.
    ---------------------------------------------------------------------------
        I come before you today, as a leader, a proud American and a
    daughter of Guam. My family's contribution to this nation, and my
    decades of service to my People, taking an oath every 2 years to uphold
    this same constitution, asking you to give me the right to Manifest my
    own destiny.
        I look at my entire career, as an athlete, an Investigator, a
    Director, and a Senator for 15+ years--I have lived a full life,
    blessed with a great family, great friends, and a great career. For
    me--my goal now is to make sure that my children and our future
    generations are no longer subjected by these injustices. We have fought
    alongside you in wars, we are proud to be home to the highest
    enlistment rates into the U.S. Armed Forces. I ask you today, why can't
    we be equals during peacetime? With the partnership and support of all
    of you whom I have the honor of testifying before, I will keep fighting
    to meet my goal.

        On behalf of the People of Guam, Thank you, Mr. Chairman.

                                     ______

     Questions Submitted for the Record to the Hon. Tina Muna Barnes, Vice
                         Speaker, 36th Guam Legislature
                  Questions Submitted by Representative Sablan
        Question 1. The Guam legislature recently had its own hearing to
    discuss the Insular Cases resolution. Could you share some of the key
    takeaways and recommendations from that discussion?

        Answer. Hafa Adai! Thank you for the opportunity to submit
    testimony on H. Res. 279, the Insular Cases Resolution. I was honored
    to present testimony to the Committee in support of your efforts to
    restore parity in our territories. We concluded discussions on my
    Resolution 56-36 (COR) today, relative to supporting your efforts with
    H. Res. 279. The Guam Legislature will be voting on my Resolution this
    week, and I am optimistic that I will be able to deliver the support of
    the Guam Legislature.
        Based on the testimony we received for the public hearing,
    Resolution 56-36 received overwhelming support from the Governor
    Lourdes A. Leon Guerrero, legal scholars, governmental and community
    stakeholders, and global partners.
        The sentiment during the hearing was that House Resolution 279 is
    the first step to correcting an injustice. The U.S. Congress can
    exercise its Plenary Powers to correct this injustice. As such, I
    amended the resolution to reflect these requests by legal scholars and
    community stakeholders to include this language.
        We also incorporated the request of my colleague Senator Mary
    Camacho Torres, and echoed by the Governor of Guam, to add language
    relative to the application of the Supplemental Security Income program
    to be inclusive of Guam. This was based on the testimony of Attorney
    Rodney Jacob, who serves as Katrina Schaller's counsel. Attorney Jacob
    stated that ``It is contrary to common sense, human decency, and sound
    public policy to deny public benefits to all other American citizens
    with disabilities living on Guam.'' While Katrina won her case in the
    U.S. District Court of Guam last June, the U.S. Federal Government has
    appealed to the Ninth Circuit, which has paused the case pending the
    outcome of a similar case from Puerto Rico, which will be heard by the
    U.S. Supreme Court.
        This same report also outlines that there must be further action to
    provide the People of Guam parity with their fellow Americans. The
    United States, through Davis v. Guam, systematically denied the People
    of Guam their right to Self-Determination. Concurrently, the United
    States has grown their footprint on Guam as a result of the ongoing
    Military Build-Up. While the I recognizes the importance of Guam as
    United States Military Installation, amidst growing regional threats
    perpetuated by rogue actors, and the importance of a free and safe
    Indo-Pacific, I concur that the People of Guam should have a voice in
    potential long-term ramifications to their home.
        During the public hearing, I entered into the record a report by
    the Unrepresented Nations and People's Organization (UNPO). The UNPO
    report points out that Guam's status as an Unincorporated Territory,
    and how the Insular Cases present a framework wherein only certain
    parts of the United States Constitution applies to Guam. This
    determination, as echoed by Legal Scholars present, proved to be an
    injustice to the People of Guam and deprived them of fundamental rights
    afforded to Americans.
        The floor debate on Resolution 56-36 was definitely contentious.
    But as in any functional democracy, it only works if we can have an
    open dialogue that encompasses the different perspectives of those
    governed. It was apparent to me that Guam's relationship with the
    United States is something that everyone in our Island is passionate
    about, and something that we must continue to discuss. I am grateful
    that you allowed me to voice my opinion and my concerns. I am thankful
    for your leadership, continued advocacy for parity within the United
    States Territories, and I am confident I can count on you to always
    allow the voice of the People of Guam to be heard.
        Stronger, TOGETHER!

                                     ______

        Mr. Sablan. Thank you very much, Vice Speaker.
        I now recognize Mr. Neil Weare for 5 minutes.

         STATEMENT OF NEIL WEARE, PRESIDENT, EQUALLY AMERICAN,
                             WASHINGTON, DC

        Mr. Weare. Thank you for the opportunity to testify today
    in this historic, first ever congressional hearing to focus on
    the Insular Cases, and I appreciate those who have joined from
    the territories despite the challenging time zones.
        I am Neil Weare, President and Founder of Equally American,
    the only non-profit whose mission is to advance equality and
    the right to vote in the U.S. territories. I've also recently
    taught legal seminars on the law of U.S. territories at Yale
    Law School and Columbia Law School and have published
    scholarship on the Insular Cases in the Yale Law Journal and
    Harvard Law Review.
        Equally American approaches our work through a civil rights
    lens and does not take a position on political status in the
    territories other than to support self-determination and
    decolonization. Through our impact litigation, we work to build
    the kind of broad awareness and consensus at both a national
    and local level needed to end the second-class treatment of
    U.S. citizens in the territories. I speak today on behalf of
    Equally American, not on behalf of any clients we represent.
        Simply put, America has a colonies problem, and the reason
    is clear: a series of racist early 1900 Supreme Court decisions
    known as the Insular Cases. As a consequence of the Insular
    Cases, 3.5 million residents of U.S. territories are treated as
    second-class citizens and sometimes even denied citizenship
    itself. From a civil rights perspective, the United States
    continues to deny residents of the territories the right to
    vote for President and voting representation in Congress even
    as Congress maintains the power to govern the territories
    unilaterally. From a human rights perspective, the United
    States has fallen far short of its commitment to self-
    determination, decolonization, and indigenous rights.
        At the same time, citizens in the territories have higher
    military service rates than any state and contribute billions
    of dollars in Federal taxes every year, all while being denied
    equal participation in a broad range of Federal programs that
    other citizens simply take for granted. In short, the Insular
    Cases have laid the groundwork for what Jose Cabranes has
    called ``colonialism as constitutional doctrine'' or as former
    Congressman Dr. Robert Underwood recently said, the Insular
    Cases ``encoded into the political DNA of the United States of
    America that colonies are OK.'' The Insular Cases have been
    criticized by both liberal and conservative legal scholars
    alike with prominent originalist scholar Michael Ramsey
    recently explaining that, ``the Insular Cases are an
    abomination,'' something originalists and non-originalists
    should be able to agree on.
        While the Supreme Court has acted to over-rule many of its
    appalling decisions like Plessy v. Ferguson, the Insular Cases
    remain not just on the books but continue to cause real harm.
    As Guam Attorney General Leevin Camacho recently said about the
    Insular Cases, ``the harm is not hypothetical.'' Indeed, their
    legacy has meant a denial of SSI benefits, a lack of parity in
    Medicaid, veterans discrimination, all without a vote or say in
    Federal law. Nor would over-ruling the Insular Cases serve to
    impede self-determination or decolonization or result in the
    parade of horribles some of the witnesses today warn of.
        If anything, turning the page on the Insular Cases is
    necessary if we are to have serious conversations about these
    issues. Last year, the Supreme Court questioned the continued
    validity of the Insular Cases, indicating the Insular Cases
    should not be further extended, yet this has not stopped the
    Insular Cases from continuing to be relied on by the United
    States in court filings.
        In Fitisemanu v. United States, DOJ has relied on the
    Insular Cases to argue that unlike everywhere else on U.S.
    soil, there is no constitutional right to U.S. citizenship for
    people born in so-called unincorporated territories. In another
    recent case, United States v. Baxter, DOJ relied on the Insular
    Cases to limit the Fourth Amendment's protections against
    unreasonable search and seizure in certain territories. And of
    course, in United States v. Vaello Madero, recently taken up by
    the Supreme Court, the denial of SSI benefits is a clear legacy
    of the colonial framework established by the Insular Cases.
        If history teaches us anything, simply waiting for the
    Supreme Court to reverse an injustice is not enough. That is
    why I commend the bipartisan co-sponsors of H. Res. 279 who
    call on the Insular Cases to be rejected in their entirety. I
    also applaud the work of this Committee to address many of the
    inequalities residents of the territories face through
    statutory means. The U.S. DOJ should also take a moment to
    reflect on its continued reliance on the Insular Cases in cases
    involving the Constitution's application to residents of U.S.
    territories.
        I will take it as a good sign that the Biden-Harris
    administration announced today it is nominating Chief Judge
    Gustavo Gelpi, a strong critic of the Insular Cases, to fill
    the vacancy left by the passing of Judge Juan Torruella, whose
    legacy fighting against the Insular Cases is an inspiration to
    all of us.
        The people of the United States must ask ourselves: Who are
    we, and who do we want to be? Do we as a Nation accept or
    reject the colonial framework established by the Insular Cases,
    and what does that call upon us to do? Condemning the Insular
    Cases is an important start, if only a start. A century of
    colonialism as constitutional doctrine is enough. I ask that
    you support this resolution and look forward to your questions.

        [The prepared statement of Mr. Weare follows:]
       Prepared Statement of Neil Weare, President and Founder, Equally
                    American Legal Defense & Education Fund
        Chair Raul M. Grijalva, Ranking Member Bruce Westerman, and
    distinguished committee members:

        Thank you for the opportunity to testify in support of House
    Resolution 279 at this historic, first-ever congressional hearing
    focused on the Insular Cases.
        I am Neil Weare, President and Founder of Equally American Legal
    Defense & Education Fund. Equally American is the only nonprofit
    focused on advancing equality and civil rights for the 3.5 million
    citizens living in U.S. territories. Building on the progress of
    earlier civil rights movements, we approach our work through a civil
    rights lens. We do not take a position on political status in the
    Territories, other than to reject the colonial status quo. Through our
    impact litigation, we work to build the kind of broad awareness and
    consensus at both a national and local level needed to end the second-
    class treatment of U.S. citizens in the Territories. I speak today on
    behalf of Equally American, not on behalf of any clients we represent.

     America Has a Colonies Problem and it is Because of the Insular Cases

        Simply put, America has a colonies problem. And the reason is
    clear: a series of racist early 1900s Supreme Court decisions known as
    the Insular Cases that invented a new legal doctrine designed to
    transform the United States from a Nation founded on the rejection of
    colonialism to one that embraced colonial expansion and perpetual
    colonial rule.
        As a consequence, 3.5 million residents of U.S. territories--who
    not coincidentally are 98% ethnic or racial minorities--are treated as
    second-class citizens, and sometimes even denied citizenship itself.
    From a civil rights perspective, the United States continues to deny
    residents of the territories the right to vote for President and voting
    representation in Congress, even as Congress maintains the power to
    govern the territories unilaterally.\1\ From a human rights
    perspective, the United States has fallen far short of its commitments
    to self-determination, decolonization, and indigenous rights.\2\
    ---------------------------------------------------------------------------
        \1\ Stacey Plaskett, The Second-Class Treatment of U.S. Territories
    is Un-American, The Atlantic (March 11, 2021).
        \2\ Unrepresented Nations and Peoples Organization (UNPO), CHamoru
    Self-Determination: Development, Democracy and Decolonization in Guam
    Amid a Military Build-Up, UNPO.org (April 2021).
    ---------------------------------------------------------------------------
        At the same time, the territories have higher military service
    rates than any state,\3\ and contribute billions of dollars in federal
    taxes every year \4\ while being denied equal participation in federal
    programs like Medicaid, Supplemental Security Income (SSI), and
    Supplemental Nutrition Assistance Program (SNAP) that every other
    American takes for granted.\5\
    ---------------------------------------------------------------------------
        \3\ See, e.g., Josh Hicks, Guam: A High Concentration of Veterans,
    But Rock-Bottom VA Funding, Washington Post (October 29, 2014).
        \4\ Alexia Fernndez Campbell, Puerto Rico Pays Taxes. The US Is
    Obligation To Help It Just As Much As Texas And Florida, Vox.com
    (October 4, 2017).
        \5\ Neil Weare, Rosa Hayes, and Mary Charlotte Carroll, The
    Constitution, COVID-19, and Growing Health Disparities in U.S.
    Territories, ACS Expert Forum (April 28, 2020); Hammond, Andrew,
    Territorial Exceptionalism and the American Welfare State (July 13,
    2020). Michigan Law Review, Forthcoming.
    ---------------------------------------------------------------------------
        However you look at it, U.S. territories can only be described as
    colonies of the United States.

        If there is a but-for or proximate cause for the colonial
    relationship between the United States and its overseas territories--
    which has now existed for 123 years and counting--it is the Insular
    Cases. Following the acquisition of overseas territories in 1898, the
    Supreme Court's decisions in the Insular Cases broke from its prior
    precedent to establish a doctrine of territorial incorporation,
    creating for the first time a distinction between so-called
    ``incorporated'' territories ``surely destined for statehood'' and so-
    called ``unincorporated'' ones, where there was no such promise of
    eventual political equality.\6\ Some commonly understand the Insular
    Cases to hold that the Constitution applies ``in full'' in incorporated
    territories, but only ``in part'' in unincorporated territories.\7\
    ---------------------------------------------------------------------------
        \6\ Neil C. Weare and Adriel I. Cepeda Derieux, After Aurelius:
    What Future for the Insular Cases?, 130 Yale L.J. (Nov. 2, 2020).
        \7\ Boumediene v. Bush, 553 U.S. 723, 757 (2008).

        The reason for the Supreme Court's doctrinal shift from a
    Constitution that only allowed temporary territories to one that
    embraced permanent colonies was clear: racial animus toward the people
    living in the overseas territories acquired following the Spanish-
    American War. Notably, the same justices who ruled in Plessy v.
    Ferguson to justify Jim Crow and racial segregation also decided the
    Insular Cases.\8\ The Insular Cases and the doctrine of territorial
    incorporation not only ratified but constitutionalized the era's racism
    and racial hierarchies. In this way, the Insular Cases provided a
    constitutional license for the United States to have permanent
    colonies. Or as your former colleague, Dr. Robert Underwood, recently
    testified at a hearing in support of this resolution in Guam, the
    Insular Cases ``encoded into the political DNA of the United States of
    America that colonies are OK.'' \9\
    ---------------------------------------------------------------------------
        \8\ Neil Weare, Why the Insular Cases Must Become the Next Plessy,
    Harv. L. Rev.: Blog (Mar. 28, 2018).
        \9\ Joe Taitano II, Resolution Rejecting U.S. Supreme Court Insular
    Cases Heard, Pacific Daily News (May 5, 2021).

        The most prominent of these cases, Downes v. Bidwell--a highly
    fractured 5-4 decision--laid the groundwork for what Judge Jose
    Cabranes has called ``colonialism as constitutional doctrine.'' \10\ In
    dissent, Chief Justice Melville Fuller rejected the idea that
    ``Congress has the power to keep [an unincorporated territory], like a
    disembodied shade, in an intermediate state of ambiguous existence for
    an indefinite period'' with such a territory being ``absolutely subject
    to the will of Congress, irrespective of constitutional provisions.''
    \11\
    ---------------------------------------------------------------------------
        \10\ Downes v. Bidwell, 182 U.S. 244, 282-83 (1901).
        \11\ Id. at 372 (Fuller, J., dissenting).

        Modern critics of the Insular Cases include conservative legal
    luminaries like Professor Gary Lawson, co-founder of the Federalist
    Society,\12\ and prominent liberal scholars like Sanford Levinson.\13\
    As originalist scholar Michael Ramsey has outlined, ``the Insular Cases
    were an outrageous bit of non-originalism. The distinction between
    `incorporated' and `unincorporated' territories . . . has no basis in
    the Constitution's text or founding-era commentary.'' \14\ In short, as
    Professor Ramsey recently explained, ``[t]he Insular Cases are an
    abomination . . . something originalists and non-originalists should be
    able to agree on.'' \15\
    ---------------------------------------------------------------------------
        \12\ Gary Lawson and Guy Seidman, The Constitution of Empire:
    Territorial Expansion & American Legal History (2004).
        \13\ Sanford Levinson, Why the Canon Should Be Expanded to Include
    the Insular Cases and the Saga of American Expansionism, 17 Const.
    Comment. 241 (2000).
        \14\ Michael Ramsey, The Supreme Court, FOMB v. Aurelius
    Investment, and the Insular Cases, The Originalism Blog (October 16,
    2017).
        \15\ Michael Ramsey, The Supreme Court, FOMB v. Aurelius
    Investment, and the Insular Cases, The Originalism Blog (June 4, 2020).

        While the Supreme Court has acted to overrule many of its most
    appalling decisions, the Insular Cases remain not just on the books,
    but continue to cause real harm.

                   Harm of Insular Cases ``Not Hypothetical''

        As Guam Attorney General Leevin Camacho recently said about the
    Insular Cases, ``the harm is not hypothetical.'' \16\ Indeed, the
    Insular Cases and the colonial framework they established should be
    viewed as kitchen table issues, not simply abstract matters of
    principle.
    ---------------------------------------------------------------------------
        \16\ Office of the Attorney General of Guam, Twitter (May 5, 2021).
    ---------------------------------------------------------------------------
        Deprived of any voting power in the federal government, it is
    perhaps not surprising residents of the Territories are short-changed
    in a range of federal benefits programs that most Americans take for
    granted. Disparities in federal Medicaid policy leave citizens in the
    Territories without the funding that ensures a basic level of
    healthcare sustainability to most American communities.\17\ Throughout
    the country, Medicaid enables providers to care for low-income
    Americans and to invest in equipment, infrastructure, and health-worker
    salaries. Congress allocates Medicaid funds to Territories at the lower
    rates comparable to the wealthiest states, like California, rather than
    the higher rates associated with states with similarly low per capita
    incomes. Congress also caps Territories' funds at an arbitrary dollar
    amount that falls well below actual need.\18\ Although Congress
    increased Medicaid funding to all Territories in response to Hurricanes
    Irma and Maria, without further action by Congress this funding bump
    will expire later this year--setting the stage for a Medicaid cliff
    that has life or death consequences for residents of the
    Territories.\19\
    ---------------------------------------------------------------------------
        \17\ Selena Simmons-Duffin, America's `Shame': Medicaid Funding
    Slashed In U.S. Territories, NPR.org (November 20, 2019).
        \18\ Lena O'Rourke, Congress is Holding Health, Wellbeing of U.S.
    Territory Residents in the Balance, CLASP.org (December 19, 2019).
        \19\ Javier Balmaceda, Territories' Looming Medicaid ``Cliff''
    Highlights Need for Full, Permanent Funding, CBPP.org (March 16, 2021).
    ---------------------------------------------------------------------------
        Another example of how political inequality in the Territories
    leads to benefits discrimination is the SSI program. Under federal law,
    otherwise eligible low-income aged, blind, or disabled Americans living
    in most U.S. territories are entirely precluded from receiving SSI
    benefits solely based on where they happen to live. So, for example, if
    someone receiving SSI benefits moves from Arizona or Arkansas to Guam
    or Puerto Rico, their benefits will end even as their very real needs
    continue. This discriminatory treatment unjustly disqualifies some of
    America's most vulnerable citizens from accessing the basic benefits
    they need and deserve. The constitutionality of denying SSI benefits to
    residents of the Territories will soon be tested by the Supreme Court
    in United States v. Vaello Madero.\20\
    ---------------------------------------------------------------------------
        \20\ 956 F.3d 12 (1st Cir. 2020).
    ---------------------------------------------------------------------------
        Military service members from the Territories are not insulated
    from this discrimination. Over 100,000 veterans living in the
    Territories have served to defend our Nation's democratic and
    constitutional principles. Yet they remain disenfranchised simply
    because of where they live. More than 20,000 veterans from the
    Territories served in Iraq and Afghanistan, with nearly 100 making the
    ultimate sacrifice. Equality should not be denied these patriotic
    citizens, or the communities in which they live.
        At bottom, the colonial framework established by the Insular Cases
    means vital decisions are being made for the people of the Territories
    in the absence of the usual democratic checks and balances. The grim
    reality is that until this democratic deficit is resolved, literal life
    and death decisions will continue to be made for citizens in the
    territories without their input, something that cannot be squared with
    the American principle of the consent of the governed.

             Now is the Time to Turn the Page on the Insular Cases

        Last year in Aurelius v. FOMB, the Supreme Court questioned the
    ``continued validity'' of the Insular Cases, indicating that ``the
    Insular Cases should not be further extended''.\21\ In this way, the
    Supreme Court continued the trend of narrowing and cabining the Insular
    Cases, although it stopped short of overruling them, noting the issue
    wasn't squarely presented.\22\ This has not stopped the Insular Cases
    from continuing to be relied upon to cause harm to residents of U.S.
    territories.
    ---------------------------------------------------------------------------
        \21\ Fin. Oversight & Mgmt. Bd. for P.R. v. Aurelius Inv., 140
    S.Ct. 1649, 1665 (2020).
        \22\ Neil Weare, Kyla Eastling, and Danny Li, The Supreme Court
    Just Passed Up a Chance to Overrule Appallingly Racist Precedents,
    Slate.com (June 1, 2020).
    ---------------------------------------------------------------------------
        In Fitisemanu v. United States, currently pending before the Tenth
    Circuit Court of Appeals, the United States has relied on the Insular
    Cases to argue that--unlike everywhere else on U.S. soil--there is no
    constitutional right to U.S. citizenship for people born in so-called
    ``unincorporated'' territories. Leaders from Puerto Rico, Guam, the
    U.S. Virgin Islands, and the Northern Mariana Islands have challenged
    \23\ the United States view that under the Insular Cases Congress has
    the power to unilaterally recognize--or revoke--citizenship for people
    born in all overseas territories. Meanwhile, American Samoan officials
    have embraced the U.S. view that citizenship in the territories is a
    congressional privilege, not a constitutional right.\24\ A district
    court in Utah rejected this view, holding that people born in overseas
    territories have a constitutional right to U.S. citizenship that
    Congress has no power to deny.\25\ The Supreme Court may soon be called
    on to resolve these questions.
    ---------------------------------------------------------------------------
        \23\ Brief Of Amici Curiae Members Of Congress, Former Members Of
    Congress, And Former Governors Of Guam, The Northern Mariana Islands,
    Puerto Rico, And The U.S. Virgin Islands, Fitisemanu v. United States
    (Tenth Circuit, filed May 12, 2020).
        \24\ Intervenor Defendants-Appellants' Opening Brief, Fitisemanu v.
    United States (Tenth Circuit, filed April 14, 2020).
        \25\ Fitisemanu v. United States, 426 F. Supp 3d. 1155 (D. Utah
    2019).
    ---------------------------------------------------------------------------
        In another recent case, United States v. Baxter, the U.S. relied on
    the Insular Cases to successfully argue before the U.S. Court of
    Appeals for the Third Circuit that the Insular Cases allow for a
    territories-only exception to the Fourth Amendment that permits
    incoming mail from other parts of the United States to be searched
    without a warrant or even probable cause--something that would be
    patently unconstitutional anywhere else in the United States.\26\ The
    Supreme Court denied review of the case, leaving the Fourth Amendment
    right against unreasonable search and seizure uncertain in the
    territories.
    ---------------------------------------------------------------------------
        \26\ United States v. Baxter, 951 F.3d 128 (3d Cir. 2020).
    ---------------------------------------------------------------------------
        Even where the Insular Cases are not directly invoked by the United
    States, their legacy continues to create uncertainty and cause harm. In
    United States v. Vaello Madero--recently taken up by the Supreme
    Court--the United States has disclaimed any express reliance on the
    Insular Cases while nonetheless still arguing that Congress can deny
    SSI benefits to otherwise eligible low-income aged, blind, or disabled
    citizens living in the Virgin Islands, Puerto Rico, Guam, and American
    Samoa based solely on the fact that they live in a territory. Lower
    courts unanimously struck down this statutory discrimination as an
    unconstitutional denial of equal protection.\27\ Whatever doctrinal
    impact the Insular Cases may have before the Supreme Court in this
    case, the fact that this kind of discrimination continues to exist at
    all is a clear legacy of the colonial framework established by the
    Insular Cases.
    ---------------------------------------------------------------------------
        \27\ United States v. Vaello Madero, 956 F.3d 12 (1st Cir. 2020),
    affirming 356 F.Supp. 3d 208 (D.PR 2019).
    ---------------------------------------------------------------------------
        If history teaches us anything, simply waiting for the Supreme
    Court to reverse an injustice is not enough. I commend House Resources
    Chair Raul Grijalva and the bipartisan co-sponsors of H. Res. 279 who
    call on the Insular Cases to be ``rejected in their entirety'' as
    decisions that have ``no place in United States Constitutional law.''
    \28\ Members of Congress of all political and ideological stripes
    should reject the Insular Cases attempt to steamroll the Constitution's
    limitations on congressional power over people in the Territories. As
    the Supreme Court ruled in Boumediene v. Bush, ``The Constitution
    grants Congress . . . the power to acquire, dispose of, and govern
    territory, not the power to decide when and where [the Constitution's]
    terms apply.''\29\
    ---------------------------------------------------------------------------
        \28\ U.S. House of Representatives Committee on Natural Resources,
    Chair Grijalva, Territorial Delegates Introduce Bipartisan Resolution
    Rejecting Insular Cases as Racist and Contrary to the Constitution,
    Naturalresources.house.gov (March 29, 2021).
        \29\ Boumediene v. Bush, 553 U.S. 723, 765 (2008) (emphasis added).
    ---------------------------------------------------------------------------
        The U.S. Department of Justice should also take a moment to reflect
    on its continued reliance on the Insular Cases in cases involving the
    Constitution's application to residents of U.S. territories. President
    Joe Biden and Vice President Kamala Harris have made a commitment to
    equality, racial justice, and the rule of law a centerpiece of their
    Administration. Each of these principles stands in stark contrast to
    the Insular Cases, which is why the Biden-Harris DOJ should immediately
    stop relying on the Insular Cases in any pending or future cases.
        A century of colonialism as constitutional doctrine is enough.

                                   Conclusion

        The people of the United States must ask ourselves: who are we and
    who do we want to be? Do we as a Nation accept or reject the colonial
    framework established by the Insular Cases? And what does that call
    upon us to do regarding our relationship with citizens in U.S.
    territories? Condemning the Insular Cases is an important start, if
    only a start.
        The continuing colonial framework established by the Insular Cases
    is particularly concerning because of the undeniable connection it has
    to racial discrimination. When America's overseas Territories were
    initially acquired, Members of Congress and others were explicit that
    they viewed the race of the inhabitants of these areas to disqualify
    them from ever being able to participate in the U.S. Government as
    equals. While such sentiments are no longer openly stated, it cannot be
    a mere coincidence that more than 98 percent of territorial residents
    are racial or ethnic minorities.\30\
    ---------------------------------------------------------------------------
        \30\ Stacey Plaskett, The Left and Right's Blind Spot in Systemic
    Racism: The US Colonies, The Grio (June 24, 2020).
    ---------------------------------------------------------------------------
        We cannot erase this tragic history--nor should we permit ourselves
    to forget it. But it need not be our future.
        We urge the House to adopt H. Res 279 to condemn the Insular Cases
    and reject both their infidelity to the Constitution and the racial
    discrimination they are grounded in.
        It is the right thing to do, the moral thing to do, and it is long
    overdue.

                                     ______

       Questions Submitted for the Record to Mr. Neil Weare, President,
                                Equally American
                  Questions Submitted by Representative Sablan
        Question 1. Although the authority to overturn the Insular Cases
    lies with the Supreme Court, how may Congress and the Administration
    intervene to help resolve the issues discussed in this hearing?

        Answer. The Supreme Court has to date hesitated to act on calls for
    it to overrule the Insular Cases. So while the responsibility and
    authority to overrule the Insular Cases rests with the Supreme Court,
    Congress and the executive branch can play an important role in
    signaling that the Court should take clear and decisive action to turn
    the page once and for all on the Insular Cases and the colonial
    framework they established. At the same time, the political branches
    should act immediately to address ongoing discrimination against
    residents of U.S. territories that are a legacy of the Insular Cases.
    In this way, all three branches have an important role to play in
    ensuring that every U.S. citizen enjoys equal rights, wherever they
    live.
        In 2019, Equally American led efforts in Financial Oversight and
    Management Board v. Aurelius Investment, LLC, to call on the Supreme
    Court to finally overrule the Insular Cases.\1\ At oral argument in
    Aurelius, Attorney Jessica Mendez-Colberg expressly called on the
    Supreme Court to overrule the Insular Cases, an historic first.\2\
    Unfortunately, the Supreme Court did not take up this call to
    action.\3\ But the Supreme Court was not silent either. Building on
    prior precedent, it made clear that the ``much-criticized'' Insular
    Cases ``should not be further extended.'' \4\ The Court spoke in
    undeniably questioning terms on the Insular Cases' perdurance, noting
    that ``whatever their continued validity'' it would not expand on their
    framework, despite such an invitation from at least one party in the
    case.\5\ The Supreme Court's skepticism toward the Insular Cases
    suggests it is open to reconsidering them when a case more squarely
    presents the opportunity to do so.\6\
    ---------------------------------------------------------------------------
        \1\ See, e.g., Brief For Amicus Curiae Equally American Legal
    Defense And Education Fund In Support Of Neither Party; Brief Amici
    Curiae Of The American Civil Liberties Union And The ACLU Of Puerto
    Rico, Supporting The First Circuit's Ruling On The Appointments Clause
    Issue; Brief Of Amicus Curiae Virgin Islands Bar Association Supporting
    The Ruling On The Appointments Clause; Brief For Amici Curiae Scholars
    Of Constitutional Law And Legal History Supporting The First Circuit's
    Ruling On The Appointments Clause Issue; Brief Of Former Federal And
    Local Judges As Amici Curiae Supporting The First Circuit's Ruling On
    The Appointments Clause.
        \2\ Transcript of Oral Argument, October 15, 2019.
        \3\ Kyla Eastling, Danny Li, and Neil Weare, The Supreme Court Just
    Passed Up a Chance to Overrule Appallingly Racist Precedents,
    Slate.com, June 1, 2020.
        \4\ 140 S.Ct. 1649, 1665 (2020) (quoting Reid v. Covert, 354 U.S.
    1, 14 (1957) (plurality opinion)).
        \5\ Id.
        \6\ Adriel Cepeda-Derieux and Neil Weare, After Aurelius: What
    Future for the Insular Cases? 130 Yale L.J.F. 284 (2020).
    ---------------------------------------------------------------------------
        The Supreme Court will have another opportunity soon to weigh in on
    the Insular Cases in United States v. Vaello Madero, a case that
    considers whether discrimination against residents of U.S. territories
    in the Supplemental Security Income program violates the Constitution's
    guarantee of Equal Protection.\7\ It may also have the opportunity soon
    in Fitisemanu v. United States, a case brought by Equally American
    which challenges the Federal Government's position that citizenship in
    U.S. territories is a mere privilege to be determined unilaterally by
    Congress, rather than a right guaranteed by the Constitution.\8\
    ---------------------------------------------------------------------------
        \7\ Neil Weare, Rosa Hayes, and Mary Charlotte Carroll, The
    Constitution, COVID-19, and Growing Healthcare Disparities in U.S.
    Territories, Expert Forum, ACSlaw.org, April 28, 2020.
        \8\ Mark Joseph Stern, Federal Judge Rules American Samoans are
    U.S. Citizens by Birth. Finally. Slate.com, December 12, 2019.
    ---------------------------------------------------------------------------
        All this attention before the Supreme Court makes it critical that
    Congress and the executive branch weigh in on whether the racist
    Insular Cases should continue to be the governing legal framework for
    the 3.5 million residents of U.S. territories--more than 95% of whom
    are racial or ethnic minorities. H. Res. 279 is important because it
    puts the other branches on notice that the House of Representatives
    rejects any continued reliance on the Insular Cases and their doctrine
    of territorial incorporation. This is significant, in part, because the
    Insular Cases stand as a kind of super-deference toward Congress when
    it acts to govern the territories. But the Constitution already
    provides Congress extremely broad powers over the territories through
    the Territories Clause,\9\ so it does not need any of the extra-
    constitutional powers the Insular Cases purport to provide. As the U.S.
    Department of Justice continues to develop its approach to litigation
    involving U.S. territories, H. Res. 279 may also shape whether and how
    it will rely on the Insular Cases moving forward. The U.S. Department
    of Justice has taken steps before to reject continued adherence to
    constitutional frameworks that rest on racist or bigoted foundations,
    such as the Japanese-American internment case Korematsu v. United
    States,\10\ so reversing course on the Insular Cases would not be
    unprecedented and is in fact long overdue.
    ---------------------------------------------------------------------------
        \9\ U.S. Const. art. IV, Sec. 3., Cl. 2.
        \10\ See, e.g., Letter from the Attorney General to Congress on
    Litigation Involving the Defense of Marriage Act, February 23, 2011;
    Confession Of Error: The Solicitor General's Mistakes During The
    Japanese-American Internment Cases, May 20, 2011.
    ---------------------------------------------------------------------------
        But even as the Insular Cases come up for reconsideration before
    the Supreme Court, Congress and the executive branch should prioritize
    statutory solutions to fix what the late Judge Juan Torruella called
    the Insular Cases' legacy of ``separate and unequal'' treatment. For
    example, H.R. 1, the For the People Act, includes provisions to
    increase voting rights, justice and democracy in the U.S. territories.
    S. 1228, the Territorial Equity Act of 2021, provides equitable
    treatment for the territories in a range of federal programs. H.R. 265,
    the Insular Area Medicaid Parity Act, eliminates Medicaid funding
    limitations for U.S. territories beginning in FY2021. H.R. 1722, the
    Puerto Rico Health Care Fairness, Accountability, and Beneficiary
    Access Act of 2021, amends titles XI and XIX of the Social Security Act
    to stabilize the Medicaid program in Puerto Rico. H.R. 537, the
    Supplemental Security Income Equality Act, seeks to extend the SSI
    program to Puerto Rico, the U.S. Virgin Islands, Guam, and American
    Samoa. H.R. 1773, the Northern Marianas Family Assistance Act, seeks to
    make the Commonwealth of the Northern Mariana Islands eligible to
    operate TANF programs. H.R. 3434 amends Title XVIII and XIX of the
    Social Security Act to make improvements to the treatment of U.S.
    territories under the Medicare and Medicaid programs. The Biden-Harris
    Administration has committed to supporting a number of these critical
    legislative solutions,\11\ which could have an immediate impact on
    residents of U.S. territories regardless what action is taken by the
    Supreme Court.
    ---------------------------------------------------------------------------
        \11\ See, e.g., The Biden-Harris Plan For Recovery, Renewal And
    Respect For Puerto Rico.
    ---------------------------------------------------------------------------
        The time for all three branches of the Federal Government to act to
    dismantle the legacy of the Insular Cases is now. In 2021, no one
    should be discriminated against based solely on what Zip Code they
    happen to live in.

                                     ______

        Mr. Sablan. Thank you very much, Mr. Weare. Right on time.
        I now recognize Professor Rose Cuison-Villazor. You have 5
    minutes, Professor.

      STATEMENT OF PROFESSOR ROSE CUISON-VILLAZOR, VICE DEAN AND
        PROFESSOR OF LAW, RUTGERS UNIVERSITY, NEW YORK, NEW YORK

        Dr. Cuison-Villazor. Good afternoon, Distinguished Chair,
    Congressman Sablan, and distinguished Members and witnesses. My
    name is Rose Cruz Cuison-Villazor. I am Vice Dean and Professor
    of Law at Rutgers Law School in New Jersey. Thank you for the
    opportunity to provide oral testimony on the Insular Cases. I
    request that my written testimony be entered into the record.
        As you may know, I am a legal scholar whose work has
    focused on immigration, citizenship, critical race theory, and
    Asian Americans and Pacific Islanders and the law. I have
    written articles on the Insular Cases that have been published
    in the Harvard Law Review and California Law Review. I have
    included links to those articles in my submitted written
    testimony.
        On a personal level, I was born in the Philippines and grew
    up on the island of Saipan in the Commonwealth of the Northern
    Mariana Islands. I therefore also have a personal connection to
    issues that involve people in the U.S. territories. Today, I
    offer my qualified support for House Resolution 279. There are
    three reasons why my support is qualified.
        First, I support denouncing the Insular Cases for their
    racist origins and racist subordination of people in the U.S.
    territories that rendered millions of people second-class
    citizens.
        Second, I recognize that the Insular Cases have led to
    unequal application of U.S. constitutional principles in the
    U.S. territories and that unequal application of the U.S.
    Constitution has ongoing harms today.
        Having said the above, allow me to explain my third point
    which addresses why my support for House Resolution 279 is
    qualified. Despite the racist origins of the Insular Cases, it
    is important to recognize that these cases may be seen in a
    different light when viewed from the perspective of individuals
    who negotiated the political agreement known as a ``Covenant''
    that established the Commonwealth of the Northern Mariana
    Islands in political union with the United States.
        In particular, the Covenant provided that because of the
    importance of the ownership of land for the culture and
    traditions of the people of the Northern Mariana Islands, and
    in order to protect them against exploitation and to promote
    their economic advancement and self-sufficiency, only persons
    of Northern Marianas descent may own permanent and long-term
    interests in real property in the CNMI.
        As originally written, Article XII of the CNMI Constitution
    defined persons of Northern Marianas descent as a U.S. citizen
    or U.S. national who has at least one-quarter of Northern
    Marianas Chamorro or Northern Marianas Carolinian blood.
    Article XII has since been amended so that now persons of
    Northern Marianas descent refers to a U.S. citizen or U.S.
    national who has at least some degree of Northern Marianas
    Chamorro or Northern Marianas Carolinian blood. Notably,
    because Article XII restricts land ownership in the CNMI based
    on bloodline it would no doubt be categorized as a racial
    classification and thereby open to being challenged under the
    14th Amendment's Equal Protection Clause.
        Under conventional equal protection analysis, race-based
    laws are subjected, and rightly so, to the most rigorous and
    exacting constitutional standard of strict scrutiny, which
    provides that for the law to survive it must have a compelling
    government interest and that the means employed is narrowly
    tailored to achieve that compelling government interest.
    Crucially, laws that are viewed as racially discriminatory are
    generally struck down.
        Article XII faced such an equal protection challenge in the
    1980s and 1990s but survived. In Wabol v. Villacrusis, the U.S.
    Court of Appeals of the Ninth Circuit chose not to use
    traditional equal protection analysis but instead relied on the
    Insular Cases to uphold Article XII's constitutionality. It
    should be noted that when it was then challenged, Article XII
    had the narrower and arguably non-racial version of Article
    XII.
        As I have explained in my articles, if Article XII were
    challenged today, a court would most likely use equal
    protection analysis instead of relying on the Insular Cases,
    and it would likely strike it down because it is race based.
    The most recent Supreme Court case that would support this
    conclusion is Rice v. Cayetano in which the Supreme Court
    struck down the blood quantum preference for Native Hawaiians
    as violative of the 15th Amendment.
        My goal for today was to simply prompt a discussion on the
    limits of equal protection analysis and my concern that the law
    is ill equipped to address the unique laws that are designed to
    promote the political and cultural rights of the people of
    Northern Marianas descent.
        Thank you very much for the opportunity to offer my
    testimony today.

        [The prepared statement of Ms. Cuison-Villazor follows:]
       Prepared Statement of Professor Rose Cuison-Villazor, Rutgers Law
                                     School
        My name is Rose Cruz Cuison-Villazor. I am Vice Dean and Professor
    of Law at Rutgers Law School in New Jersey.
        Thank you for inviting me to provide testimony on the Insular Cases
    and territorial incorporation doctrine.
        As you may know, I am a legal scholar whose work has focused on
    immigration, citizenship, critical race theory, Asian Americans and the
    Law and Pacific Islanders and the Law. In my work on Pacific Islanders
    and the Law, I have written about the Insular Cases, which have been
    published in various journals, including the California Law Review,
    Harvard Law Review Forum, and Southern California Law Review. My
    remarks today are based on articles published in those journals and I
    include links to those articles at the end of my written testimony.
        On a personal level, I was born in the Philippines and grew up on
    the island of Saipan in the Commonwealth of the Northern Mariana
    Islands (CNMI). I therefore also have a personal connection to issues
    that involve people in the U.S. territories.
        Today, I offer my qualified support for House Resolution 279, which
    acknowledges ``that the U.S. Supreme Court's decisions in the Insular
    Cases and the ``territorial incorporation doctrine'' are contrary to
    the text and history of the U.S. Constitution, rest on racial views and
    stereotypes from the era of Plessy v. Ferguson that have long been
    rejected, are contrary to the Nation's most basic constitutional
    principles, and should be rejected as having no place in U.S.
    constitutional law.''

        There are three reasons why my support for House Resolution 279, is
    qualified.

        First, I support denouncing the Insular Cases' for their racist
    origins and racial subordination of people in the U.S. territories. The
    words from the most well-known of the Insular Cases, Downes v.
    Bidwell,\1\ evidence racism when Justice Brown wrote that the
    territories were, ``inhabited by alien races, differing from us in
    religion, customs, and . . . modes of thought,'' which made it
    impossible for the United States to govern them ``according to Anglo-
    Saxon principles.'' Another Supreme Court jurist, Justice White,
    referred to the millions of people in the U.S. territories as
    ``uncivilized'' and ``unfit'' for citizenship. In light of the
    country's current reckoning with historical, structural and ongoing
    racism, it is important to acknowledge how these racist and hurtful
    words racialized U.S. territorial peoples as inferior and rendered them
    second-class citizens.
    ---------------------------------------------------------------------------
        \1\ 182 U.S. 244 (1901).
    ---------------------------------------------------------------------------
        Second, I recognize that the Insular Cases have led to unequal
    application of U.S. constitutional principles in the U.S. territories,
    which has led to the denial of constitutional rights in the
    territories. Understanding and amplifying this relatively unknown and
    complex history is crucial for recognizing the unique harms that people
    in the U.S. territories have experienced since the 1900s and that these
    harms are ongoing.\2\
    ---------------------------------------------------------------------------
        \2\ For example, in multiple cases in which Filipinos argued that
    they were entitled to birthright citizenship because they were born in
    the Philippines when the islands were subject to the jurisdiction of
    the United States, several appellate courts relied on the Insular Cases
    to hold that the Citizenship Clause did not apply in the Philippines.
    The non-recognition of citizenship had concrete and negative
    consequences, including deportation of Filipinos from the United States
    and inability to pass down citizenship to family members. See Friend v.
    Reno, 172 F.3d 638 (9th Cir. 1999); Valmonte v. Immigration &
    Naturalization Serv., 136 F.3d 914, 920 (2d Cir. 1998); Lacap v.
    Immigration & Naturalization Serv., 138 F.3d 518 (3d Cir. 1998); Rabang
    v. Immigration & Naturalization Serv., 35 F.3d 1449 (9th Cir. 1994).
    ---------------------------------------------------------------------------
        Having said the above, allow me to explain my third point, which
    addresses why my support for House Resolution 279 is qualified. Despite
    the racist origins of the Insular Cases, it is important to recognize
    that these cases may be seen in a different light when viewed from the
    perspective of individuals who negotiated the political agreement known
    as the ``Covenant'' that established the commonwealth of the Northern
    Mariana Islands in political union with the United States.\3\ In
    particular, the Covenant provided that because of the ``importance of
    the ownership of land for the culture and traditions of the people of
    the Northern Mariana Islands'' and ``in order to protect them against
    exploitation and to promote their economic advancement and self-
    sufficiency,'' only ``persons of Northern Marianas descent'' may own
    ``permanent and long-term interests in real property'' in the CNMI.\4\
    As originally written, Article XII of the CNMI Constitution defined
    ``persons of Northern Marianas descent'' as a U.S. citizen or U.S.
    national who is at least ``one-quarter Northern Marianas Chamorro or
    Northern Marianas Carolinian.'' \5\ For purpose of determining Northern
    Marianas descent, Article XII defines such person as ``full-blooded
    Northern Marianas Chamorro or Northern Marianas Carolinian if that
    person was born or domiciled in the Northern Mariana Islands by 1950
    and was a citizen of the Trust Territory of the Pacific Islands.'' \6\
    As originally written, Article XII was narrow in scope and did not
    include all Chamorros or Carolinians in what became the CNMI.
    ---------------------------------------------------------------------------
        \3\ Covenant to Establish a Commonwealth of the Northern Mariana
    Islands in Political Union with the United States of America, Pub. LO.
    No. 94-241, 90 Stat. 263 (1976).
        \4\ See id. at Sec. 805.
        \5\ N. Mar. I. Const. art. XII, Sec. 4.
        \6\ Id.
    ---------------------------------------------------------------------------
        Article XII has since been amended so that now ``persons of
    Northern Marianas descent'' refers to a U.S. citizen or U.S. national
    ``who has at least some degree of Northern Marianas Chamorro or
    Northern Marianas Carolinian blood or a combination thereof.'' \7\
    Notably, because Article XII restricts landownership in the CNMI based
    on bloodline, it would no doubt be categorized as a racial
    classification and thereby open to being challenged under the
    Fourteenth Amendment's Equal Protection Clause. Under conventional
    equal protection analysis, race-based laws are subjected to the most
    rigorous and exacting constitutional standard of strict scrutiny, which
    provides that for the law to survive, it must have a compelling
    government interest and that the means employed is narrowly tailored to
    achieve that compelling government interest. Crucially, laws that are
    viewed as racially discriminatory are generally struck down.\8\
    ---------------------------------------------------------------------------
        \7\ Id.
        \8\ See Shelley v. Kraemer, 334 U.S. 1 (1948).
    ---------------------------------------------------------------------------
        Article XII faced such an equal protection challenge in the 1980s
    but survived. In Wabol v. Villacrusis,\9\ the U.S. Court of Appeals for
    the Ninth Circuit chose not to use traditional equal protection
    analysis but instead relied on the Insular Cases to uphold Article
    XII's constitutionality.\10\ It should be noted that what was then
    challenged was the narrower and arguably non-racial version of Article
    XII. I discuss in detail the Ninth Circuit's analysis in Wabol in my
    California Law Review, and in the interest of time, I will not revisit
    the court's analysis today.\11\
    ---------------------------------------------------------------------------
        \9\ 958 F.2d 1450 (9th Cir. 1990).
        \10\ See id. at 1459.
        \11\ See Rose Cuison Villazor, Blood Quantum Land Laws and the Race
    Versus Political Identity Dilemma, 96 Cal. L. Rev. 801 (2008).
    ---------------------------------------------------------------------------
        But as I explain in that article and subsequent writing, if Article
    XII were to be challenged again today, and a court were to use equal
    protection analysis instead of relying on the Insular Cases, it would
    likely strike it down because it is race-based. As I explain in that
    article, equal protection jurisprudence today classifies blood quantum
    land laws along a political versus racial binary. Significantly, under
    this binary, courts have upheld laws that protect federally recognized
    tribes as non-racial, political laws. By contrast, groups that are not
    federally recognized tribes have seen their laws struck down as
    racially discriminatory. The most recent Supreme Court case that
    demonstrates the juxtaposition of race versus political laws with
    respect to indigenous peoples is Rice v. Cayetano, in which the Supreme
    Court struck down a blood quantum preference for Native Hawaiians as
    violative of the Fifteenth Amendment.\12\
    ---------------------------------------------------------------------------
        \12\ See 528 U.S. 495 (2000).
    ---------------------------------------------------------------------------
        My goal for today is to prompt a discussion on the limits of equal
    protection analysis and my concern that the law is ill-equipped to
    address unique laws that are designed to promote the political and
    cultural rights of the people of Northern Marianas descent. While
    Congress would be correct in condemning the Insular Cases for their
    racism, it should also be mindful that the alternative here--equal
    protection law--might also not be as helpful in protecting the rights
    of certain indigenous peoples.

        In case the Committee finds it helpful, I include below links and
    brief summaries to my articles that expand on my remarks.

         Problematizing the Protection of Culture in the Insular
                Cases, 131 Harv. L. Rev. F. 127 (2018), https://
                harvardlawreview.org/2018/04/problematizing-the-protection-
                of-culture-and-the-insular-cases/.

                o  Explains the need for equal protection law to make room
            and recognize as valid cultural claims by indigenous peoples
            that do not belong to federally recognized tribes.

                o  Points out that claims to culture must also recognize
            that culture is dynamic and changes over time.

         Reading Between the (Blood) Lines, 83 S. Cal. L. Rev. 473
                (2010), https://southerncalifornialawreview.com/wp-content/
                uploads/2018/01/83_473.pdf.

                o  Argues that the original Article XII of the CNMI
            Constitution furthered a political and non-racial purpose.

         Blood Quantum Land Laws and the Race Versus Political
                Identity Dilemma, 96 Cal. L. Rev. 801 (2008), https://
                cslc.law.columbia.edu/sites/default/files/content/docs/
                Villazor-Blood-Quantum-and-Equal-Protection.pdf.

                o  Examines the framing of equal protection law along a
            racial versus political binary such that laws that protect
            federally recognized American Indian tribes are viewed as
            ``political'' in nature and laws that address the rights of
            non-American Indian indigenous groups as racially based and
            subject to a higher level of constitutional inquiry.

        Thank you for this opportunity and honor to share my views with
    you.

                                     ______

        Mr. Sablan. Thank you. One of the best times kept so far.
        And now finally Dr. Peter Watson. Dr. Watson, you have 5
    minutes.

     STATEMENT OF DR. PETER S. WATSON, PRESIDENT & CEO, THE DWIGHT
       GROUP, LLC, FORMER WHITE HOUSE DIRECTOR OF ASIAN AFFAIRS,
               NATIONAL SECURITY COUNCIL, WASHINGTON, DC

        Dr. Watson. Thank you very much for the opportunity of
    being here today, Mr. Chairman and members of the Committee. By
    way of background, I was actually born like others not in the
    United States. I am a first generation immigrant here. My
    background is from a working class immigrant community in New
    Zealand where I first came to appreciate the sensitivities of
    immigrants from all around the world which led me to
    representation of peoples before, for example, the United
    Nations Trusteeship Council where I appeared twice before the
    decolonization and self-determination hearings in the 1980s and
    on behalf of the Pacific Islands Association, and therefore my
    frame of reference as you might imagine is first and foremost
    the protection and advancement of the most deep and sovereign
    rights of self-determination.
        And that is obviously at core, at least what I perceive we
    are seeking to do today, taking into consideration as we all
    can and should do the racist and abhorrent language that was
    used in many cases, not just in the Insular Cases but I'm going
    to reference others that actually cite the Insular Cases.
        So, at core today, what we are doing is to urge protection
    first and foremost for the self-determination and rights of
    sovereign-owned peoples whose rights are freely given to them
    not by the government but by God, and indeed, of course, the
    rights are not granted to them by government at all. And,
    accordingly, further to my written statement, I would like to
    just reference some observations that I have on the resolution
    as written.
        What is immediately evident through even non-lawyers is
    when you look at the resolution there is no offered definition
    of what is considered to be Insular Cases. People think they
    know what that means, but jurists indeed cite from up to 16
    rulings of the U.S. Supreme Court in that line of decisions.
        And accordingly, the use of the term ``Insular Cases'' in
    resolving Clause 4 of the Resolution has no effective juridical
    mention. The resolution naturally, therefore, is a nullity
    without identifying the specific laws of each ruling that it
    seeks to, in fact, overturn or to nullify and how that each
    element they seek to do so is unconstitutional, and that
    clearly is the only way that courts can subsequently discern
    which way or the rationale for how it is that the Congress
    determined which was indeed unconstitutional law, bad law, or
    indeed good law remaining.
        Actually, limiting the resolution's Part IV purge to
    jurisprudence of the Insular Cases, if you could do it, which
    I've just referenced it is very difficult, raises the really
    problematic question of how to treat other cases which
    reference or cite the Insular Cases, which includes the
    Fitisemanu case where, as we know, the Court and plaintiff
    lawyers rely on the 1880 case of United States v. Wong Kim Ark
    which cites the Dred Scott case and favorably quotes the
    Court's own racist epithets directed at Mexicans and Chinese in
    the earlier Slaughterhouse Cases. So, if Wong Kim Ark is not
    purged from the Fitisemanu case, then Resolution 279 will only
    be selectively anti-racist.
        Under House Resolution 279 as proposed, there is material
    doubt about how the courts will play the role of judicial
    review assigned by the Constitution if both sides of the
    argument on the Insular Cases that have been relied upon by
    Congress and the courts for 120 years cannot be openly and
    fully deliberated in pending and future litigation on
    application of the Constitution in the territories.
        And of gravest concern, House Resolution 279, in fact,
    could be interpreted as an invitation for the courts to repeal
    the Insular Cases without giving any rights to sovereign people
    exercising their self-determination.
        Thank you.

        [The prepared statement of Mr. Watson follows:]
                   Prepared Statement of Dr. Peter S. Watson
        Mr. Chairman, allow me to thank you and the Committee members for
    this oversight hearing to consider America's commitment to self-
    determination in our nation's territories, necessarily doing so in the
    context of today's appreciation of the needs for racial justice.
        This witness has grappled with the Insular Cases in federal court
    litigation, representation of the Marshall Islands on political status
    affairs, and twice in testimony for the Pacific Islands Association on
    territorial self-determination before the United Nations.
        In the American system of constitutional federalism, the
    traditional remedies for anti-democratic, discriminatory, unjust or
    otherwise aggrieved outcomes under federal law are well understood. For
    a number of years, this witness exercised quasi-judicial powers when a
    member of the Congressionally established/mandated International Trade
    Commission, our decisions thereof being subject to judicial review,
    including up to the Supreme Court--which indeed has overturned the
    same.
        This witness accordingly has first-hand experience, and no minor
    ego-bruising, arising from dueling between the congressional and
    judicial branches, in the process testing their respective
    constitutional roles and limits, including relative to each other: And,
    in no small part, it is this personal frame of reference that I place
    over the proposed resolution to discern how it fits relative to federal
    court jurisdiction, and vice-versa.
        In brief: H. Res. 279 exemplifies circumstances in which Congress
    would seek to exercise its powers to redress grievances arising from a
    statute and/or the Constitution, but not by enactment of a corrective
    remedial statute under Art. I, which, in the case of territories, is
    also an exercise of the Article IV, Sec 3, Clause 2 territorial power.
    Nor does H. Res 279 propose where otherwise necessary a corrective
    remedial amendment to the Constitution under Article V.
        Thus, H. Res. 279 is in lieu of a statute that would extend SSI or
    Medicare/Medicaid in the territories on the same basis as the states.
    Likewise, H. Res. 279 is in lieu of a statute repealing all federal
    laws since 1901 ratifying or based on the Insular Cases unincorporated
    territory doctrine.
        Moreover, nor is H. Res. 279 a proposed Art. V amendment to extend
    to Americans in the territories federal voting rights for full and
    equal representation in Congress and the Electoral College.
        Instead, H.R. 279 would seek by an act of Congress to restrain or
    even restrict the President and the courts from relying upon the
    Insular Cases, which currently are controlling federal court decisional
    law, jurisprudence which is legally authoritative. That is to say, the
    supreme law of the land.
        Some commentators refer to a proposal like H. Res. 279 as a
    Congressional override of court made law. But court rulings overridden
    by Congress generally involve court orders interpreting an act of
    Congress where the statute, and/or the court interpretation of it, is
    flawed.
        H. Res. 279 is not that: One reason is that H. Res. 279 must be
    understood as a Congressional endorsement of the remedies sought by
    plaintiffs in the Vaello Madero, Pena Martinez, and Schaller cases
    challenging the Insular Cases. That linkage is confirmed by that March
    10, 2021 letter from leadership and members of this Committee asking
    the Attorney General to abandon Insular Cases defense in those cases.
        However, as a proposed Congressional override, H. Res. 279 is not
    aimed at a flaw in the SSI statute as it applies in the states: it is
    aimed at the constitutionality of the Insular Cases unincorporated
    territory doctrine as court made law allowing Congress to apply federal
    statutes to non-incorporated territories differently than in states.
        As such, H. Res. 279 would seek to deprive the President and
    federal courts of reliance on the Insular Cases as applicable under the
    rule of law as it existed when those three lawsuits began. The result
    would be that those three plaintiffs likely would prevail.
        But that would be in the nature of a statutory remedy for a
    statutory injury. There is another case in the federal appellate
    process, Fitisemanu v. U.S., that is a constitutional claim that
    national citizenship half of the national and state citizenship clause
    in Section 1 of the 14th Amendment applies in American Samoa as it
    applies in the states of the union and territories joined permanently
    in union with the United States.
        In the Northwest Ordinance tradition and under the Insular Cases
    permanent union means incorporation and equality under the
    Constitution, except that full equality still comes only with voting
    rights that come only with statehood.

        Accordingly, if H. Res. 279 is adopted and has its expressly stated
    impact, and the U.S. Justice Department abandons an Insular Cases
    defense--leading to a ruling upholding the trial court decision
    extending the 14th Amendment to all five current territories--here is
    what that might mean:

         All current unincorporated territories permanently
                incorporated into union without self-determination or
                statutory action by elected representatives.

         Uniformity clause taxation, equal protection, due process,
                all federal law applies as in states and incorporated
                territories.

         Guam, U.S. Virgin Islands, American Samoa join Puerto
                Rico, CNMI removal from U.N. list of non-self-governing
                territories with right of independence.

        In close, most fundamentally of all, the immediately preceding
    scenario could leave territories in a judicially determined status
    which would not secure a congressional commitment to full equality
    through statehood, nor, in the alternative, independent nationhood,
    based on democratic self-determination--obviously the very basis upon
    which our founding constitutional fabric was founded.

                                     ______

        Mr. Sablan. Thank you, Dr. Watson.
        I want to thank all of the witnesses for their testimony.
    Next, we will go to questions. Committee Rule 3(d) imposes a 5-
    minute limit on questions. The Chair will now recognize Members
    for any questions that they may wish to ask. I am going to
    start with my questions.
        In my opening statement, I said I am concerned that Wabol
    v. Villacrusis, in which the Ninth Circuit uses the Insular
    Cases to uphold Article XII of the Commonwealth of the Northern
    Marianas Constitution and the restriction of land ownership to
    persons of Northern Marianas descent might have a completely
    different outcome today, 30 years later.
        In that time, the Federal court has said Northern Marianas
    descent is a race-based classification, and now Supreme Court
    Justice Brett Kavanaugh wrote an amicus brief challenging race-
    based voting in Rice v. Cayetano. So, anyone who wants to
    protect Article XII should be thinking of alternative legal
    theories or even new local support exclusive NMD land ownership
    to protect culture and tradition because the Insular Cases may
    not help.
        As a matter of fact, Commonwealth and Federal courts have
    held as legal fee simple ownership of land claims made by
    individuals who are neither domiciled in the Northern Marianas
    in 1950, nor were they ever citizens of the territory of the
    Pacific Islands.
        Professor Villazor, some quick yes or no questions, please.
    In Wabol, the Ninth Circuit said the equal protection
    guaranteed to all U.S. citizens by the 14th Amendment did not
    apply to the Northern Marianas in the case of property
    ownership, correct?
        Dr. Cuison-Villazor. Yes.
        Mr. Sablan. The Wabol decision rested on the conclusion
    that some aspects of the 14th Amendment are not ``fundamental
    in the international sense,'' correct?
        Dr. Cuison-Villazor. Yes.
        Mr. Sablan. And this idea that some constitutional
    protections are fundamental and others can be taken away by an
    act of Congress derives from Balzac v. Porto Rico, one of the
    Insular Cases, correct?
        Dr. Cuison-Villazor. That is correct.
        Mr. Sablan. To determine whether property ownership was a
    fundamental right, the Wabol Court applied the standard using
    King v. Morton: ``The Importance of the constitutional right of
    State makes it essential that a decision rest on a solid
    understanding of the present conditions in the territory. It
    must be based on facts.''
        You point that out in your 2018 Law Review article that
    present conditions in the Marianas are that a significant
    portion of land is no longer in native lands but rather leased
    or occupied for decades by non-indigenous groups, correct?
        Dr. Cuison-Villazor. Yes.
        Mr. Sablan. So, a court today might look at this change
    pattern and conclude that permanent control of land is no
    longer fundamental to the people in the Marianas, correct?
        Dr. Cuison-Villazor. It might.
        Mr. Sablan. Professor, there can be exceptions from the
    equal protections of the U.S. Constitution if there are
    compelling public interests, correct?
        Dr. Cuison-Villazor. If there are compelling government
    interests, that is correct.
        Mr. Sablan. And public is the government, so I say yes. In
    Wabol, the Court found a public interest in protecting land
    ownership because land is the basis of family organization in
    the Islands, passes from generation to generation contributing
    to the well-being of family members, correct?
        Dr. Cuison-Villazor. Yes.
        Mr. Sablan. Yet, in 1985, the term of land leases was
    extended from 40 years to 55 years so that considerably two
    generations of Northern Marianas descendants would derive no
    direct benefit from family land or have any say in how that
    land is used, correct?
        Dr. Cuison-Villazor. Yes.
        Mr. Sablan. And in 1990, when the Wabol Court decided that
    equal protection did not apply, only persons of at least one-
    quarter Chamorro or Carolinian could own land, correct?
        Dr. Cuison-Villazor. Yes.
        Mr. Sablan. Yet, in 2014, the Constitution was amended so
    that a person with any Chamorro or Carolinian blood could own
    land. So, instead of requiring a Chamorro or Carolinian
    grandparent now you only need a great, great, great, great,
    great and on and on and on grandparent. The Wabol Court noted
    that the looser the fit, the more likely the asserted interest
    is mere pretext. The fit between who is enemy and who is not
    has become very, very loose since Wabol was decided, has it
    not?
        Dr. Cuison-Villazor. That is correct.
        Mr. Sablan. And that loose fit weakens the argument there
    is a compelling public interest in exempting Article XII from
    the equal protection of the 14th Amendment, correct?
        Dr. Cuison-Villazor. That will be correct under both the
    Insular Cases and equal protection law.
        Mr. Sablan. Thank you. As I said, I am not here to take
    sides on the question of Article XII. This is an issue for the
    people of the Marianas to debate and decide. What I do want to
    establish, however, is there are reasons to think that if a
    court today were to look at whether the equal protection of the
    14th Amendment applies in the case of Article XII, the
    conclusion might be very different than it was 30 years ago in
    Wabol, and if anyone is holding onto these racist Insular Cases
    as a way of keeping Article XII afloat, they may be holding
    onto an anchor, not a life preserver because the next time
    around, the Insular Cases may not protect Article XII.

        I need to now recognize Miss Gonzalez-Colon. Please. You
    have 5 minutes. I hope I didn't exceed my time. Did I exceed my
    time?

        Miss Gonzalez-Colon. Thank you, Mr. Chairman. Thank you and
    the witnesses for being with us today. My first question will
    be to Dr. Watson. First of all, thank you for coming. I think
    your experience as a former White House Director for Asian
    Affairs and National Security Council provides some ideas as to
    how the government always deals with the Insular Cases.
        Dr. Watson, the resolution we are considering today rejects
    the Insular Cases and their use in present and in future cases
    involving the application of the Constitution in the U.S.
    territories. If this resolution passed, it would not overturn
    the Insular Cases, but it will establish that the House of
    Representatives rejects their treatment as precedent by the
    executive branch and the courts. However, wouldn't you say that
    Congress already has the power and the authority to over-ride
    the inequities perpetrated by the Insular Cases under its
    Article I authority?
        Dr. Watson. No. I wouldn't say that, actually. In the event
    that what Congress is seeking to do--well, at least there are
    two powers that--and just by way of background, ma'am, while I
    did spend some time at the National Security Council, for
    several years I served in a quasi-judicial capacity at the
    congressionally mandated and established International Trade
    Commission, which indeed had its decisions upheld not by the
    U.S. Supreme Court.
        So, I've had some opportunity to look at the relationship
    between----
        Miss Gonzalez-Colon. Could you answer the question, sir?
        Dr. Watson. The question is that Congress can overturn
    those elements that are not constitutional and are
    administrative in nature. If they wish to overturn matters that
    are constitutionally based, you have to do so likely in Article
    IX.
        Miss Gonzalez-Colon. But Congress has authority to do that,
    right?
        Dr. Watson. That involves, by the way, I mean, by
    definition, what I'm referring to is a constitutional
    amendment, ma'am.
        Miss Gonzalez-Colon. Yes.
        Dr. Watson. Yes, they do.
        Miss Gonzalez-Colon. That is the answer I was expecting.
    You said that you can discuss previous examples of cases in
    which the Court refused to overturn precedent of case law that
    was discriminatory, but Congress always steps in to address and
    correct those inequities. Can we say that the Ledbetter case
    can be one of them that Congress actually acted on that
    precedent of the courts and then acted directly to amend law?
        Dr. Watson. Ma'am, with respect, I was here before the
    Committee to reference the interest of those exercising self-
    determination. I am not a constitutional expert on particular
    applications, and I would not presume to opine on those.
        Miss Gonzalez-Colon. Thank you, Mr. Watson. Then I have
    questions to Mr. Neil Weare, President of Equally American. You
    recently co-authored an article in which you pointed out that
    at least since the 1950s the Supreme Court has expressed
    skepticism of the Insular Cases' Territorial Incorporation
    Doctrine and has said courts should not extend that further. In
    that essay, you pointed out that in the Aurelius case the Court
    continued its decades-long trend of narrowing the reach of
    Insular Cases while still coming up short of over-ruling them
    all together.
        Can you discuss why in your opinion it is critical that the
    Court take an extra step in finally over-ruling the Insular
    Cases, or do you understand that Congress should act first?
        Mr. Weare. Over-ruling the Insular Cases is important for
    residents of the territories just like over-ruling Plessy v.
    Ferguson was important for African Americans and the civil
    rights movement. Just as you can't really imagine the Civil
    Rights Act of the 1960s or the Voting Rights Act without Plessy
    being over-ruled, many of these policy changes which
    Congresswoman Gonzalez-Colon correctly noted, Congress does
    currently have the power to address statutorily, but so long as
    this constitutional framework of inequality is in existence it
    really takes away a lot of the pressure for Congress or the
    White House to act on these issues.
        Over-ruling the Insular Cases is an important step, but it
    is just the first step to move forward on the range of issues
    that you have been working to address in your role as
    Representative of Puerto Rico.
        Miss Gonzalez-Colon. Thank you. My time expired. Mr.
    Chairman, I yield back.
        Mr. Sablan. Thank you. Jennifer, we could go back for
    another round if you wish. Ms. Radewagen of American Samoa, you
    have 5 minutes. Thank you.
        Mrs. Radewagen. Thank you, Chairman Sablan and Ranking
    Member Gonzalez-Colon for holding this hearing today. And thank
    you to the panel for your testimony.
        I find myself unable to fully support H. Res. 279 because I
    believe wholesale rejection of the Insular Cases may have
    unforeseen or undesirable implications on the future
    relationship between the territories and the United States. I
    also do not feel personally comfortable signing onto a
    resolution that makes judgments on what precedents another
    independent branch of government can and cannot base their
    decisions on.
        However, I still want to express my sincere appreciation
    for the intent behind the Chairman's resolution and my sincere
    gratitude for his efforts on behalf of the territories. It is
    undeniable that the cases contain outdated and racially biased
    language. Such language can be harmful, and I am sure we will
    all agree that we have a responsibility to distance ourselves
    from such outdated views as well as a responsibility to do
    right by the people of the territories.
        In my opinion, rather than making moral judgments on the
    decisions of another branch of government, it would be prudent
    to use our powers as a legislative body to address the issues
    of the territories directly. Congress has better tools than a
    House Resolution to make things right, and we have a
    responsibility to act rather than do things indirectly through
    the other branches of government. This is the most effective
    way to actively distance ourselves from the racist rhetoric of
    the past while making real and substantial changes.
        I also want to emphasize that we act in Congress aligned
    with the will of the governed. The residents of the territories
    each have their own opinions about their relationship with the
    mainland and their future and express that to Congress. The
    D.C. Court of Appeals in the case of Tuaua v. United States and
    the American Samoa government protected against what many in
    American Samoa, including the territorial government itself,
    considered to be an imposition of citizenship by judicial fiat.
        We simply cannot ignore the basic truth that the super
    majority of people actually living in American Samoa
    vociferously opposed the case and the relief that it sought and
    continue to oppose the forum shopping going on in Fitisemanu
    case. One may disagree with racist tones underlying the Insular
    Cases but do not abandon the wishes of the residents of
    American Samoa in the process.
        Finally, I want to point out that American Samoa is unique
    by virtue that it became the only U.S. territory by deed
    secession starting in 1900. The Matai, or local chiefs of
    Tutuila, the largest island in American Samoa while in tyranny
    ceded the island to the United States in 1900, and Manu'a
    followed in 1904.
        Lieutenant Governor Ale, in the hearing materials and
    testimony submitted today, there are references to a pending
    decision in the Tenth Circuit Court of Appeals on a Utah
    District Court as to whether or not American Samoans born in
    the territory should have birth right citizenship. While we
    anxiously await the outcome of this case, could you elaborate
    on what the D.C. Appeals Court held, that it was anomalous to
    impose citizenship over the objections of the American Samoan
    people themselves as expressed through their democratically
    elected representatives?
        Lieutenant Governor Ale. Thank you for that, Congresswoman.
    That was the decision in the Tuaua case. The D.C. Circuit held
    applying the framework of the Insular Cases that the decision
    on whether or not the Constitution applies has to be decided
    from the viewpoint of the governed, from the viewpoint of the
    people of American Samoa in this case, whether or not this
    application of citizenship is practical and/or anomalous to the
    culture of American Samoa. The evidence presented in that case
    led the Court to conclude that applying the citizenship clause
    to American Samoa is both impractical and anomalous, and
    therefore it wasn't applied. So, that is the short answer to
    your question.
        Mrs. Radewagen. Mr. Chairman, before I yield, I would like
    to ask unanimous consent to enter into the record an article
    from the Guam bar brief and a statement on H. Res. 279 both
    written by Dr. William B. Cleary, Professor of Law at Hiroshima
    Shudo University and former Assistant Attorney General for the
    Territory of Guam.
        Mr. Sablan. So ordered. Thank you.
        Mrs. Radewagen. Mr. Chairman, I yield back.

        [The information follows:]

    Submissions for the Record by Rep. Radewagen

                            Statement for the Record
                             Dr. William B. Cleary
                Professor of Law, Hiroshima Shudo University\1\
    ---------------------------------------------------------------------------
        \1\ Dr. Cleary is also a former Assistant Attorney General for the
    Territory of Guam.

       H.R. 279: Historical and Legal Revisionism Detracts from Serious
    ---------------------------------------------------------------------------
                Assessment of Federal Territorial Jurisprudence

    I.  An Overview of Insular Case Law

                  Reasonable people can agree or disagree with the
            juridical rectitude of the Insular Cases, a 120-year-old line
            of rulings articulating the incorporation/non-incorporation
            doctrine as upheld by federal courts in the modern era. Members
            of the U.S. Supreme Court have been alternately agreeing and
            disagreeing on the rectitude of the Insular Cases since 1901.

                  However, H.R. 279 is materially flawed by the
            incorrect premise that racial bias expressed by some members of
            the U.S. Supreme Court in opinions filed in that case
            constitute the law of the Insular Cases, both at the time of
            the Downes v. Bidwell ruling in 1901 until the present, and
            render the incorporation/non-incorporation doctrine invidiously
            and impermissibly discriminatory.

                  H.R. 279 asserts that the law of Insular Cases is
            so tainted by racial bias that reliance by the Department of
            Justice, federal courts or Congress on the Insular Cases in the
            modern era is in effect a form of active institutionalized
            systemic racism.

                  If upholding the Insular Cases is systemic
            racism, that alleged unconstitutional race hate driven abuse of
            judicial power has been perpetrated by--

                        o  Warren Court members who overturned Plessy in
                    1954 but upheld the Insular Cases in 1957 (Reid v.
                    Covert)

                        o  Burger Court reliance on the law of the Insular
                    Cases in 1976 (Examiners v. Flores de Otero), including
                    Justice Marshall

                        o  Roberts Court reliance on the law of the Insular
                    Cases in 2008 (Boumediene v. Bush) and 2016 (Puerto
                    Rico v. Sanchez Valle), including Justice Ruth Bader
                    Ginsburg.

                  Instead of legal and historical revisionism, the
            reality is that the flawed and imperfect Insular Cases should
            be relied upon unless and until superseded in an orderly manner
            by a better status doctrine based on self-determination, not a
            repeat of judicial activism that began with the Insular Cases
            after Congress abdicated its role defining territorial status
            in 1900.

                  Until a better model is democratically adopted,
            it must be understood the Insular Cases recognize and do not
            prevent Congress from exercising its authority to permanently
            integrate and join (i.e. ``incorporate'') territories into the
            union. This would extend 14th Amendment U.S. citizenship, equal
            protection, due process, uniformity under federal law to
            territories as in states.

                  Insular Cases recognize authority of Congress to
            secure equal civil and political rights for Americans in
            territories that are attainable only through statehood or
            incorporation into an existing state, including equal voting
            rights in federal elections for full, equal and proportional
            representation in Congress and the Electoral College.

                  Insular Cases recognize the authority of Congress
            to extend ``equity'' to U.S. nationals and citizens in
            territories under federal statutory law, including equal access
            to Medicare, Medicaid, SSI and SNAP and other
                  Instead of undemocratically determining the
            permanent status and rights of territories and residents
            thereof by judicial edict, the Insular Cases recognize the
            authority of Congress to determine the political status of
            territories and the civil/political rights of peoples thereof
            based on the national interest, including democratic self-
            determination by the people of past, current and future
            territories.

                  The incorporation/non-incorporation doctrine of
            the Insular Cases recognizes that Congress has authority and
            responsibility under Article IV to determine disposition of the
            status of U.S. territory outside a state, whether or not
            inhabited by foreign nationals, American nationals or citizens
            of the United States, as the case may have been in the past, or
            may be in the present or future.

                  The Insular Cases recognize the authority of
            Congress to decide political questions of federal territorial
            law and policy within the reserved power of Congress for
            territories not within a state, including the power of Congress
            to embrace or reject the unincorporated territory status
            doctrine and otherwise define the status of the territories
            concerned.

                  From 1901 to the present Congress has embraced,
            ratified, confirmed by statute and codified the unincorporated
            territory doctrine of the Insular Cases as prescribed
            originally and in the modern era, and approval of H.R. 279 by
            Congress would not have any legal effect repealing, altering or
            modifying federal territorial law institutionalizing the law of
            the Insular Cases.

    II.  U.S. Citizenship and Insular Cases

                  At the time decided the Insular Cases referred to
            in H.R. 279 did not apply to persons recognized to have
            acquired U.S. nationality or citizenship.

                  It was the Fuller Court (1888-1910) that
            recognized its 1901 ruling in Downes v. Bidwell did not address
            Congressional failure in the Foraker Act of 1900 to define the
            status of residents in Puerto Rico beyond classification as
            residents of the territory.

                  The Fuller Court accordingly clarified in the
            1903 case of Gonzales v. Williams that residents of
            unincorporated territories are not foreign national aliens for
            purposes of U.S. immigration laws, and were ``under the
            national protection of the U.S.'' but not U.S. citizens.

                  This national but not citizen sub-doctrine of the
            Insular Cases applied in the Philippines Territory until it
            became an independent nation in 1946, and applied to all other
            unincorporated territories unless and until Congress conferred
            statutory citizenship.

                  That lead to classification of persons born in
            the unincorporated territories under the Insular Cases as
            ``U.S. nationals but not citizens'' unless and until Congress
            conferred statutory U.S. citizenship based on birth in a
            territory, as it has in Guam, Northern Mariana Islands, Puerto
            Rico and U.S. Virgin Islands.

                  Because there is no constitutionally material
            difference between the status and rights of a ``citizen'' or
            ``national'' while residing in an unincorporated territory, so
            far American Samoa has not petitioned for statutory
            reclassification as ``citizens'' except as an option upon
            relocation establishing residence in a state.

                  H.R. 279 misleadingly imputes denial of equal
            rights to U.S. citizens based on systemic racism against U.S.
            citizens practiced in the states under the separate but equal
            doctrine of Plessy v. Ferguson.

                  The historical truth is that the incorporation/
            non-incorporation doctrine of the Insular Cases was not applied
            to territories in which Congress had conferred statutory U.S.
            citizenship until 1922, after Congress granted U.S. citizenship
            in Puerto Rico in 1917.

                  For the first time since the Northwest Ordinance
            was adopted as U.S. law in 1879, it was the 1922 ruling by the
            Taft Court in Balzac v. Puerto Rico that applied the
            unincorporated territory doctrine of the Insular Cases law to a
            territory in which Congress conferred U.S. citizenship.

                  If the Taft Court had followed the tradition of
            the Northwest Ordinance as the Fuller Court had in connection
            with U.S. Congress conferral of U.S. citizenship on foreign
            national aliens in the annexation and acquisition of the
            territories of Hawaii and Alaska, Puerto Rico would have been
            recognized in the Balzac case as an incorporated territory.

                  Had the Taft Court followed the Insular Cases as
            applied by the Fuller Court only to unincorporated territories,
            Puerto Rico and all other territories in which Congress chose
            to confer U.S. citizenship would have been incorporated into
            the union.

                  We will never know if Congress would have granted
            U.S. citizenship to U.S. Virgin Islands, Guam or Northern
            Mariana Islands if Balzac had not applied the unincorporated
            territory doctrine of the Insular Doctrine to Puerto Rico after
            citizenship was conferred by Congress. The Balzac ruling meant
            citizenship did not require application of the U.S.
            Constitution as in incorporated territories and states.

    III.  H.R. 279 Revisionism Regarding Fuller Court Record

                  H.R. 279 narrative on Fuller Court rulings (1888-
            1910) is politically contrived and lacks juridical foundation.

                  In Plessy v. Ferguson (1896) the court majority
            adopted ``separate but equal'' doctrine upholding race
            segregation in states.

                  In Downes v. Bidwell (1901) a different alignment
            of court members defines territory of Puerto Rico as ``not
            incorporated,'' meaning U.S. Constitution does not apply as in
            incorporated territories or states.

                  In Rassmussen v. U.S. (1905) yet another
            different realignment of court members defines territory of
            Alaska as incorporated under U.S. Constitution as in states and
            27 territories that had become states since 1796.

                  The only difference between Fuller Court rulings
            defining Alaska and Hawaii incorporated under the U.S.
            Constitution and Puerto Rico or Philippines as unincorporated
            was NOT RACE, it was that CONGRESS CONFERRED U.S. CITIZENSHIP
            IN ALASKA AND HAWAII, BUT DENIED U.S. CITIZENSHIP TO PUERTO
            RICO AND GUAM BEGINNING IN 1900.

                  The Fuller Court attempted in the Insular Cases
            to give Congress some latitude and time to decide on conferral
            of citizenship in Philippines, Puerto Rico and Guam, and later
            U.S. Virgin Islands, by inventing the non-incorporation
            doctrine, but when Congress finally made the decision in 1917
            the 1922 Balzac ruling separated citizenship from permanent
            incorporation under the U.S. Constitution.

                  Thus, Balzac made conferral of citizenship in
            Puerto Rico, U.S. Virgin Islands, Guam and Northern Mariana in
            effect a ``non-event'' constitutionally, because it perpetuated
            instead of ending unincorporated territory status.

                  That condition of arrested political status
            persisted into the modern era, when Congress could have acted
            to resolve status for all the organized territories as it did
            in the Philippines, Hawaii and Alaska after WWII.

                  Instead of affording all territories informed
            self-determination--the choices between continued
            unincorporated territory status, incorporation leading to
            equality through statehood or integration with an existing
            state, or nationhood based on the right to independence,
            Congress has avoided status resolution and relied on the
            Insular Cases law of non-incorporation that H.R. 279 to
            rationalize failure to manage a federally sponsored self-
            determination process.

                  Federal territorial law in Hawaii and Alaska
            discriminated against native Hawaiians and Native Alaskans, but
            the Constitution applied and equal citizenship was achieved
            through incorporation leading to statehood.

                  It was not the original Insular Cases cited in
            H.R. 279 but the Balzac ruling that applied the unincorporated
            territory doctrine of the Insular Cases to the current U.S.
            territories in which Congress has conferred U.S. citizenship.

                  From 1922 to the present Congress has accepted
            and confirmed by statute the law of the Balzac case and its
            application of non-incorporation to the territories Congress
            still defines as unincorporated.

                  Approval of H.R. 279 by Congress would not have
            any legal effect repealing, altering or modifying federal
            territorial law institutionalizing the law of the Insular
            Cases.

    IV.  H.R. 279 and Pending Litigation in Federal Courts

                  Some content of H.R. 279 appears nearly verbatim
            identical to editorial advocacy promoting adversarial legal
            position in federal civil litigation pending before U.S. courts
            at this time, as well as legal briefs filed by attorneys in
            those cases.

                  These cases include Tuaua v. U.S., No. 13-5272
            (D.C. Cir. 2015) (cert. denied); Segovia v. U.S., 880 F. 3d
            384-2018 (cert. denied); Fitisemanu v. U.S., Case No. 1:18-CV-
            36 (D. Utah Dec. 12, 2019).

                  It is not insignificant that the same attorneys
            representing Americans in the Fitisemanu case filed briefs and
            as advocates in those cases publicly defend another 1898 ruling
            by the same Fuller Court that handed down Plessy v. Ferguson
            two years earlier in 1896.

                  How is it racist-by-association to rely on the
            Fuller Court's decision in 1901 Downes v. Bidwell case because
            the same court handed down Plessy five years earlier, but not
            racist to rely on the U.S. v. Wong Kim Ark case handed down
            three years earlier by the same Fuller Court?

                  Wong Kim Ark is misrepresented by these attorneys
            as grounds for hyper-extending Section 1 of the 14th Amendment
            to the U.S. Constitution by making the national and state
            citizenship clause in that post-Civil War amendment applicable
            to what the court currently defines as unincorporated U.S.
            territories not in a state.

                  This misleadingly ignores that question of
            whether that would incorporate the territories into the union
            whether the people of the territories democratically consent or
            not.

                  The Fitisemanu lawyers and advocates also ignore
            the fact that the Wong Kim Ark ruling actually limited its
            scope and reach to birthright citizenship for persons born in a
            state of the union to parents who were lawfully present in the
            U.S. under the systemic racism of the Chinese Exclusion Act and
            other racists immigration laws.

                  The Congressional Research Service has reported
            that Wong Kim Ark did not establish that children born in the
            U.S. to parents present in the U.S. unlawfully are entitled to
            birthright citizenship under the 14th Amendment (CRS Report
            RL33079, Aug. 12, 2010), which makes Wong Kim Ark even more
            controversial than the Insular Cases in the context of modern
            era civil rights debate.

                  Yet, lawyers and the trial court in the
            Fitisemanu case relied on the Wong Kim Ark ruling in attacking
            Downes and Insular Cases as racist by virtue of being decided
            by the Fuller Court in proximity to its ruling in the Plessy v.
            Ferguson case, ignoring that Wong Kim Ark was decided two years
            after Plessy and Insular Cases came five years after Plessy.

                                     ______

                                     [GRAPHIC] [TIFF OMITTED] T4548.001

                                     .eps__

        Mr. Sablan. Mr. Gohmert, are you on? Mr. Gohmert, going
    once, going twice. Just bear with me. Mr. Tiffany? Mr. Tiffany,
    going once, going twice. Mr. Obernolte, you've been patient,
    sir. You have 5 minutes.
        Mr. Obernolte. Thank you very much, Mr. Chairman, and thank
    you to our witnesses for a very interesting hearing here. I
    have a question for Dr. Watson. I realize that we are not here
    to debate legal terms, but I have a question regarding the
    intention of H. Res. 279. Obviously, this would be signaling
    Congress' objection to the Insular Case rulings to the court
    system in the hopes that they would revisit that, right?
        So, do you think that the term ``Insular Cases'' as used in
    H. Res. 279 is clear and concisely understood enough to put the
    courts on notice about which court cases are bad law that
    Congress wants to be purged and which cases are still good law?
        Dr. Watson. Absolutely not. There is no clarity from the
    resolution as drafted as to what is intended by that term. And
    as I mentioned in my testimony, even the judiciary has extended
    the interpretation of this up to at least 12 cases, and this
    does not include, as I mentioned, cases that cite the Insular
    Cases. It would be unconstitutionally vague and would invite
    excessive judicial participation against congressional action.
        With your permission, sir, may I just provide a little
    finesse to my earlier response to Miss Gonzalez-Colon, with
    your permission?
        Mr. Obernolte. That is fine.
        Dr. Watson. Miss Gonzalez-Colon, I actually need to state
    with a little more clarity that Congress obviously using its
    existing authority under Article V, and Article I and Article V
    can, in fact, deal with statutory refinements within its
    existing constitutional authority.
        Mr. Obernolte. All right. Thank you, Mr. Watson.
        Dr. Watson. Thank you, sir.
        Mr. Obernolte. A follow-up question for Mr. Weare if I
    could. I found your testimony very interesting. You have stated
    the necessity of changing the constitutional framework of the
    Insular Cases, and I'm wondering what you would recommend that
    we as a society do about that and how to go about it because,
    obviously, this resolution doesn't accomplish that. So, what is
    the path that you would recommend?
        Mr. Weare. Thank you for that question. As a matter of
    constitutional doctrine what examination of constitutional
    issues in the territories could look like is really what it
    looked like for the more than a century prior to the Insular
    Cases in the Territorial Incorporation Doctrine being invented,
    and continuing forward, the relationship between the Federal
    Government and the District of Columbia also provides a
    framework for constitutional interpretation in non-state areas.
        Beyond that, though, one of the important consequences of
    the Insular Cases was creating this view that it is OK for the
    United States to, essentially, have colonies and not do
    anything about it, and that is why places like Puerto Rico and
    Guam have now been part of the United States for more than 123
    years. That is more than half as long as our country has had a
    constitution.
        Having the Congress, the Supreme Court, and the executive
    branch condemn the Insular Cases, condemn the colonial
    framework that they established is an important step toward
    engaging the political branches and engaging the people of each
    of the territories in a serious conversation about what their
    future relationship with the United States is.
        So, this is just a first step, but it is an important one
    in disrupting a status quo that has existed now for too long
    and fully bringing to the table all of the different parties
    that have equities and stakes in these issues.
        Mr. Obernolte. OK, I understand that the resolution is a
    first step, but the next steps would be what? A Supreme Court
    decision over-ruling and changing the ruling of the Insular
    Cases? A constitutional amendment initiated by Congress and
    ratified by the states? Both of those?
        Dr. Watson. Yes. I think having the Supreme Court review
    and over-rule the Insular Cases would be a strong step forward
    in turning the page on the Insular Cases in its colonial
    framework in terms of the political branches engaging in a
    serious process of self-determination and decolonization
    whether for some areas that meant a path to statehood, whether
    for others that meant independence or perhaps a constitutional
    amendment to address some of these issues.
        But really until there is this pressure on the political
    branches to act on what we have seen over the last decades is
    either a lack of will or an unwillingness to engage with these
    really challenging questions, and because residents of the
    territories don't have voting rights, as the Delegates and
    Resident Commissioner on this Committee know all too well,
    there needs to be pressure and support from others who do in
    order to bring the Congress together, bring this country
    together to move past what is really a regrettable chapter in
    American history that has gone on far too long.
        Mr. Obernolte. Well, thank you very much. It is an
    important topic. I am glad we are having the discussion. I
    yield back, Mr. Chairman.
        Mr. Sablan. Thank you. I would now like to recognize Ms.
    Porter. Are you still on, Katie? Ms. Porter, going once, twice.
    I think Ms. Porter is not with us. Mr. Bentz, please.
        Mr. Bentz. Thank you, Mr. Chair.
        Mr. Sablan. You have 5 minutes.
        Mr. Bentz. Thank you, Mr. Chair. Thank you for this most
    interesting hearing, and thanks to all the witnesses for taking
    the time to testify today. And I want to yield my time to
    Congresswoman Gonzalez-Colon. Thank you.
        Miss Gonzalez-Colon. Thank you for yielding. I do have a
    question, Mr. Chair, to the Honorable Tina Rose Muna, the Vice
    Speaker of Guam, if you are available. Vice Speaker, in your
    testimony, you correctly pointed out that the resolution we are
    considering today will be non-binding on the courts--and I
    agree with you on that--and it would not over-ride the Insular
    Cases. Can you discuss why it is crucial that Congress go
    beyond just renouncing the Insular Cases and use its
    constitutional power, including its plenary powers over the
    territories, to address the inequities we face?
        And I know that you discussed inequal treatment under
    Medicaid and the inability to access SSI programs as just some
    examples of inequities that Congress should address. And I
    agree with you that Congress can make this different just
    allowing territories to access and have full citizenship in
    terms of erasing the inequities. So, again, can you address the
    inequities we face?
        Ms. Barnes. Thank you so very much for that question,
    Congresswoman. As I mentioned in my testimony, my resolution
    states that denouncing the Insular Cases as racist is the first
    step, but it is my hope that this means that we now can urge
    Congress to use its plenary powers and begin binding a
    political status reconciliation process, one where I believe
    each territory is brought to the table as we chart our path
    forward.
        Again, in short, that would be my answer, and I could
    further detail this especially with all the committee
    testimonies that were done at our public hearing last week and
    submit it into the record. I hope that this would further
    answer your inquiry today. And I want to just say thank you for
    that question.
        Miss Gonzalez-Colon. Recognizing the cultural and racial
    bias underlying the Insular Cases in 1956, the Court began
    stating that neither the cases nor their reasoning should be
    given any further expansion, and it has not, however reversed
    the decisions and continues to cite them consistent with
    previous holding as reversal would mean. All of the current
    territories will be considered eventual state and a
    constitution empowered Congress to determine statehood or the
    territories will have to pay taxes under the Uniformity Clause,
    and so on.
        So, my question for you now will be--Some contend that the
    Insular Cases are the reason that the current territories can
    be treated worse than a state in Federal programs, but didn't
    the Supreme Court say in Harris v. Rosario that Congress, which
    is empowered under the Territorial Clause of the Constitution
    to make all needful rules, regulations respecting the territory
    belonging to the United States, may treat territories
    differently from states so long as there is a rational basis
    for this action? Yes, right?
        Ms. Barnes. Yes, and as I support the closer relationship
    with the United States like statehood, I believe in my heart
    that everybody needs to come to the table and make that
    decision.
        Miss Gonzalez-Colon. I agree with you on that. So, a
    reversal of the Insular Cases doctrine that some territories
    can be possessions instead of part of the United States
    unincorporated will not amend a Territorial Clause power of
    each Congress to treat territories as its widgets in Federal
    programs. Even if equal treatment is extended to a territory,
    it can be withdrawn as was done in the case of Puerto Rico for
    food stamps. Aren't the only ways to guarantee that treatment
    in the hands of Congress?
        Ms. Barnes. I agree that every territory is unique and that
    they should be able to share their story, and that is why I
    truly believe that Congress does have this plenary power to
    begin this political status reconciliation process as we tell
    each story with each territory and see how we can chart this
    path moving forward. So, again, each territory is unique and
    different from the other.
        Miss Gonzalez-Colon. I agree with you, and I agree that
    Congress should act, and then the Court will follow. I yield
    back. My time has expired.
        Mr. Sablan. Thank you very much. Mr. Lowenthal, sir, you
    have 5 minutes, and you can yield it to me. I wouldn't mind.
        Dr. Lowenthal. Thank you. I am learning so much. Mr. Chair,
    I thank you for holding this hearing, but I am going to pass on
    questions. I just really want to----
        Mr. Sablan. I said you could yield your time to me. I
    wouldn't mind.
        Dr. Lowenthal. I will yield. I would definitely yield my
    time to you.
        Mr. Sablan. Thank you. I am just going to have this
    question because, look, I fully understand that in the
    thousands of Federal programs that exist in law, there are 700-
    plus programs that apply to the territories. Either some of
    them apply to--like SSI it applies to the Northern Marianas,
    but SNAP applies to Guam and the U.S. Virgin Islands. I mean,
    there is all of this mixture.
        But let me ask, I guess, the legal minds. Let me start with
    Mr. Weare. Does the Territorial Clause prevent Congress from
    making the different Federal programs applicable to the five
    territories? Does it prohibit Congress to make the laws
    applicable to the territories?
        Mr. Weare. Congress does have broad powers under its
    plenary powers in the Territorial Clause. Whether they can
    treat different territories differently really depends on the
    reason for doing so. And with respect to the SSI program, that
    is a question currently before the U.S. Supreme Court. The
    reasons that the Federal Government has given for that
    disparate treatment to date have really not been very good,
    which is why Federal judges unanimously have ruled that
    discrimination unconstitutional in the First Circuit and the
    Federal District Court.
        Mr. Sablan. Right.
        Mr. Weare. But these are complicated constitutional
    questions for sure.
        Mr. Sablan. But it doesn't prevent Congress to pass a law
    today saying SSI should apply to all the territories?
        Mr. Weare. Oh, no. Absolutely, sir. Congress has the power
    to do that immediately, and I know that there is legislation
    you have supported that would do that, and I appreciate that.
        Mr. Sablan. Professor Villazor, does the Territorial Clause
    prevent Congress from passing a law making these Federal
    programs available to all the territories?
        Dr. Cuison-Villazor. No, not at all. Congress has plenary
    powers over the territories and can exercise its powers in
    treating all territories equally.
        Mr. Sablan. Vice Speaker Barnes, would you say Congress has
    the plenary power to make all these Federal programs apply to
    the five territories?
        Ms. Barnes. Most definitely, Congressman.
        Mr. Sablan. And let me see, Mr. Watson, does Congress have
    the authority, the power to do this?
        Dr. Watson. Absolutely. I concur. Congress can, if they
    wish to, extend Federal contributions, Medicare, Medicaid, SSI,
    and other Federal social safety net programs for the
    territories as in the states.
        Mr. Sablan. So far we agree. Dr. Immerwahr, does Congress
    have the authority to make Federal programs apply to the
    Insular areas?
        Dr. Immerwahr. Yes, of course it does.
        Mr. Sablan. Thank you. And Lieutenant Governor Ale, does
    Congress have the authority to do this?
        Lieutenant Governor Ale. Yes. We believe Congress does. And
    with respect to the Insular Cases, Congress also has the right
    to say provisions of the Constitution apply to which territory
    that they want or to all the territories. And what American
    Samoa is saying when Congress decides that it should be done on
    a one-by-one basis, that each territory would come before
    Congress like Guam and CNMI and Virgin Islands have done before
    and negotiate the terms of their compact. And that is why the
    danger of eliminating the Insular Cases now is the one we are
    opposing at this time. Thank you.
        Mr. Sablan. OK. I am yielding my time.
        Mr. Tiffany, sir, you have 5 minutes. Welcome.
        Mr. Tiffany. Mr. Chairman, did you call on me,
    Representative Tiffany?
        Mr. Sablan. Yes, sir. Yes, I just did. Thank you.
        Mr. Tiffany. OK. Thank you very much. I am trying to juggle
    a couple things here. Thank you so much for your patience, and
    thank you for giving me the time here.
        I have a question to Dr. Watson. In the effort to purge
    racism from those cases sought to be covered by this Resolution
    279, should other court rulings likewise be included? Today, we
    are hearing about the Fitisemanu territorial status case in
    which the Court and plaintiffs relied entirely on the 1888
    ruling in the United States v. Wong Kim Ark, a landmark case
    recognizing any person born in a state of the Union as a
    citizen under the 14th Amendment. However, as I understand, in
    Plessy v. Ferguson it was decided in 1886, Wong Kim Ark by the
    same Court in 1888, and the Insular Cases in 1901.
        In Wong Kim Ark, the Court upheld the racist Chinese
    Exclusion Act, relied on comments by Justices in the
    Slaughterhouse Cases referring to Mexicans and the Chinese in
    derogative terms and even relied not on dictum on the law of
    Dred Scott case, a Supreme Court ruling far more racist than
    Plessy. Given the intentions expressed in the resolution,
    should we include Wong Kim Ark? I hope you were able to follow
    that. That is a long and complicated question.
        Dr. Watson. Oh, no. That is quite clear. The objectives
    undergirding the resolution to remove legacy judicial racism
    obviously cannot be adequately achieved if Wong Kim Ark and its
    ilk are excluded. Any other outcome naturally makes nonsense of
    the resolution's most worthy core and justified goal.
        Mr. Sablan. No. I disagree, but go ahead.
        Mr. Tiffany. Well, thank you very much, Dr. Watson. That is
    the only question I had for this. I don't know if you wanted to
    extend your remarks any further in regards to that. We
    certainly have time if you choose to.
        Dr. Watson. Not really. It is rather fundamental. What you
    have is, and again you have not really a unanimity or consensus
    as to what really constitutes the Insular Cases as referenced.
    There are the core ones that were originally set, but some
    jurists extend that, of course, quite naturally to the cases
    which adopted, are cited or implemented.
        And, of course, the number of cases have, in fact,
    implemented the Insular Cases such that it is natural and it is
    important that the focus of this hearing and the intention to
    deal with racially based decisions and those that are extended
    by the Supreme Court in the Insular Cases such as Wong Kim Ark
    be excluded. That would be not appropriate.
        Mr. Tiffany. OK. Thank you very much, Dr. Watson. Mr.
    Chairman, I yield back.
        Mr. Sablan. Thank you, Mr. Tiffany. I now recognize Mr.
    Gohmert. Mr. Gohmert, you have 5 minutes.
        Mr. Gohmert. OK. Thank you, Mr. Chairman. I appreciate
    that. I was thinking about yielding my time to Mr. Lowenthal,
    but he had said he was still learning.
        Mr. Sablan. You could yield to me, Mr. Gohmert. I would
    welcome it.
        Mr. Gohmert. Well, thank you. I am like Mr. Lowenthal. I am
    learning, too, and I appreciate all of the witnesses here. I am
    going to ask a question. It may seem a bit strange, but I
    really am trying to learn, and we have witnesses from different
    territories.
        Some of us have been saying for many years that the United
    States is so unusual because we are not out to be an empire,
    and we are not out to brag as the British did that the sun
    never sets on the British empire, and we have given so much of
    our greatest treasure, American blood, so that people in all
    parts of the world could be free and make their own decisions.
        And I know at one time there was a feeling in Puerto Rico
    among some that they wanted to be independent, and from what I
    am hearing it sounds like there is more of a desire than there
    used to be to perhaps be a state. But I am wondering about the
    different territories. The British seemed to be really
    surprised when there was such a big move in India to be
    independent, and they didn't really see it coming as they
    should have.
        It may seem overly simplistic, but I am curious since we
    have people from different places, is there a feeling among the
    different territories that they would want independence? I
    mean, it doesn't seem like we ought to force anybody to be part
    of the United States because we are not looking for an empire.
    We are all about trying to be about freedom.
        I don't want to be surprised some time down the road. I
    would ask any of our witnesses, is there a desire in the area
    you are representing that they would want to be independent
    from the United States? We don't want to ever lose our friends
    and especially as beautiful as some of your areas are. Holy
    smoke, they are just wonderful places to visit. But is there
    such a feeling that some of us are not aware of? Anybody?
        Lieutenant Governor Ale. I can speak for American Samoa
    that as far as I know there is no discussion, serious
    discussion, of going that direction. Some 121 years of being
    part of the American family has really instilled in all of us
    that we are Americans and part of the American family. What we
    want to do is to be given the opportunity to negotiate in a
    democratic way, to be provided the opportunity to self-
    determination and have the people of American Samoa decide. And
    that is why we oppose this resolution and its intended effect
    because it empowers courts to make decisions--for example,
    there is a case going on whether or not people from American
    Samoa should be citizens by birth, and we oppose it because the
    decision is made by a judge. We don't particularly oppose
    becoming U.S. citizens, but it is the process. We want that
    process to be done in a democratic way by the people of
    American Samoa and its leaders and not by a judge. So, that is
    the opposition that we have in this case. Thank you.
        Mr. Gohmert. OK. Thank you.
        Ms. Barnes. Mr. Chair, from the Island of Guam, we truly
    believe that our island here in the Marianas is beautiful, but
    for Guam we also believe that we are crucial and strategically
    critical to Uncle Sam. And whether or not I personally believe
    I want a closer relationship with the United States or not, the
    decision whether to choose to be independent, be a state, or
    have a free association with the United States, it should be up
    to our people to decide, and that process should be afforded to
    us.
        So, that is where I personally stand, and I know that with
    Congress having these powers to begin this political
    reconciliation process I think that this is a way that we can
    truly chart our path forward for our island of Guam, and that
    is something that we have been asking for, to acknowledge the
    right to self-determination.
        Mr. Gohmert. Thank you, Mr. Chairman.
        Mr. Sablan. Seeing that Mr. Gohmert has no more time to
    yield to me, I would now recognize Mr. Moore. Sir, you have 5
    minutes.
        Mr. Moore. Thank you, Chairman. I appreciate the
    opportunity. Thank you, experts and guests for being here. It
    is an important discussion and I am glad we have the
    opportunity to talk about these challenges.
        Dr. Watson, just two hopefully very pretty straight-forward
    questions to get your statement. Can H. Res. 279 lead to
    political status resolution for the U.S. territories, and (2)
    is that resolution the best way to address statutory equity and
    constitutional inequity issues facing the territories?
        Dr. Watson. I think I would just like to reference a
    question as to whether or not it has the effect that you have
    intended by saying that this is--I have heard that it is non-
    binding today, so that would suggest that it does not have that
    effect. I am, obviously, not a parliamentary expert. Could you
    repeat the second part of the question, please?
        Mr. Moore. Yes. And thanks for highlighting the non-binding
    part. That would definitely be something to consider. Is H.
    Res. 279 the best way to address the statutory equity and
    constitutional inequity issues facing the territories?
        Dr. Watson. No. I would say not. What one needs to do in
    government is to make efficient use of relevant tools and
    authorities and do it in a very clear and demonstrable way
    using the constitutional rights and authorities that you have.
    It is clear that as we have talked about today,
    constitutionally Congress has the right, Article I, Article V,
    statutorily to deal with matters, including Social Security in
    other places. If there is any uncertainty about that, those are
    the powers and authority that should be used.
        The application and utilization of resolutions which do not
    have clarity, which are uncertain in their terms, I do not
    believe is helpful.
        Mr. Moore. Thank you. And would you add any additional
    context on the principles of self-determination and federalism?
    Just continuing on with some of your statements, would you add
    any additional context with self-determination, federalism and
    how they are related and why they are so important to our
    insular areas?
        Dr. Watson. It is obviously a very different set of, as we
    know, political relationship, different treaties at the very
    beginning, different sovereign nations that have dealt with the
    United States. But I think at its core, and this is really
    important from the American Samoan perspective, one size does
    not fit all in terms of the constitutional structures that deal
    with application of self-governing and self-determination.
        What is critical, however, is to protect and preserve
    relative to federalism the rights of people in these respective
    territories to exercise those powers in a way that their God-
    given rights are relative to the Federal Government. It is not
    the Federal Government to tell, in that sense, to over-ride the
    appropriate exercise of self-determination in the respective
    territorial environments.
        Mr. Moore. Excellent. Thank you. As we reflected, and we
    have had several committee hearings on territories and insular
    areas, and as I reflected on it, it is very clear to me that
    there are many similarities, but I would never ever go out to
    highlight and make sure to constantly highlight, there is
    distinct interest, and there is varying different need. You
    cannot treat everything the same.
        This final question will be for Lieutenant Governor Ale.
    Since the resolution fails to recognize territory self-
    determination, how do you think it might affect territories
    that have different interests? How might it be detrimental, if
    you believe so?
        Lieutenant Governor Ale. It is detrimental to American
    Samoa, for example. If this resolution is passed and we move on
    to a future where the Insular Cases are removed, then the
    culture of American Samoa is affected. We have a community land
    culture that provides that the land is for the native people of
    American Samoa. That will automatically be a violation of the
    Equal Protection Clause if all provisions of the Constitution
    apply to American Samoa. By saying that the Insular Cases are
    not applicable, then all Constitution applies everywhere where
    there is American land. So, that is the concern, and that is
    the reality for people in American Samoa, and that is why we
    believe that this resolution should be reconsidered.
        Mr. Moore. Thank you, Lieutenant Governor. And with respect
    to the culture, I am from Utah, and there is nothing that we
    appreciate more than our close relationship with American
    Samoa. So, thank you. I yield back.
        Mr. Sablan. Mr. Moore, thank you. Ms. Tlaib, you have 5
    minutes, and if you are not going to use up your time, you can
    yield it to me. Feel free.
        Ms. Tlaib. Mr. Chair, I will make sure to leave you some
    time if you would like. Thank you so much for this opportunity.
    I appreciate it.
        We are a country that likes to believe we have moved away
    or moved beyond separate but equal, but in reality we are
    closer to the Plessy v. Ferguson famous racism than we would
    like to admit. So, from students in my hometown in Detroit,
    Detroit Public School students being denied an education
    capable of teaching them to read--they actually filed, Mr.
    Chairman, a right to literacy case--to the number of residents
    in our U.S. territories having their constitutional rights
    curtailed, we still have so much work to do to make good on the
    promise of freedom and justice for all.
        So, I want to focus my remarks today on the legacy of the
    Insular Cases and how they work today to deny residents of the
    U.S. territories access to life-saving Federal programs. As
    everyone knows, I really try to put a human face to the impact
    of what is actually happening. We are all familiar with the
    Medicaid program and that it is a critical lifeline for many
    low-income people seeking health care. It is critical for them
    to survive and thrive and so much more, but it is so
    outrageous, Mr. Chairman, that Medicaid funding to U.S.
    territories is subject to an arbitrary cap that prevents
    responding to changing economic conditions or emergency
    situations like the pandemic.
        Residents in the Michigan 13th have access to SSI that
    helps them keep a roof over their heads and food on their
    tables, yet residents, our neighbors in the U.S. territories,
    are unfairly excluded from receiving the same benefits. Food
    and security especially is bad during this pandemic, and the
    economic downturns our communities have felt has been
    tremendous, but yet SNAP and TANF are only available in certain
    territories, and their funding again is arbitrarily limited.
        So, Congress, I believe, has a duty to the 3.5 million
    people of the U.S. territories, to undue the separate and
    unequal status quo to deliver life-saving relief.
        Mr. Weare, can you talk about the human impact in Guam and
    elsewhere in the U.S. territories for being denied the same
    social service benefits that people in my district have access
    to?
        Ms. Barnes. Thank you. Mr. Chair, if I may, I'd like to
    extend a thank you to the Congresswoman. I couldn't have agreed
    with you even more, and I truly appreciate your comments. And I
    believe that with Congress having the plenary powers I think
    this is something that we could do and work together to uplift
    all the territories and work with the Federal programs and make
    it have that parity with all the territories as it relates to
    the Federal programs. And that is something that can truly
    uplift our communities.
        Ms. Tlaib. Absolutely. Thank you so much, Vice Speaker. And
    Mr. Weare, can you talk a little bit more in detail again about
    the direct impact on some of the caps and arbitrary kind of
    process? But I do appreciate your comments, Vice Speaker.
        Mr. Weare. Well said by the Vice Speaker. And, yes, these
    are life and death choices that residents of the territories
    have no political voice in deciding. That is the arbitrary
    undemocratic and colonial nature of the Insular Cases. This is
    one the cases that the Vice Speaker had mentioned earlier in
    her testimony, Schaller v. Social Security Administration.
        You have a situation where a woman facing severe health
    challenges because of a genetic condition, both her and her
    twin sister have faced this condition, received SSI benefits in
    Pennsylvania, but when she moved home to Guam to be cared for
    by her family members she was denied those benefits while her
    twin sister, who had the same identical genetic condition,
    continued to receive them in Pennsylvania.
        This is a challenge that has been brought in the Guam
    District Court, ruled unconstitutional by Judge Tydingco-
    Gatewood. It is going to be one of several cases that are going
    to be in play as the Supreme Court considers this Vaello Madero
    case. Mr. Vaello Madero is a gentleman who the U.S. Government
    came after after they gave him SSI benefits when he moved from
    New York to Puerto Rico. Here is a person who is getting the
    benefits because he is indigent, and the Federal Government
    prosecutors come after him for $20,000 that he didn't have,
    weeks before Hurricane Maria.
        Ms. Tlaib. Unbelievable.
        Mr. Weare. And, again, the Federal Government has lost in
    the lower courts. Now it is before the Supreme Court. So, as
    you identified, these are real people's lives, and these are
    benefits that Americans in other communities just take for
    granted.
        Ms. Tlaib. Thank you, Mr. Weare. I know my time is up, but
    for all my colleagues as we continue our movements for justice
    for all in our own country here, we must include our brothers
    and sisters in the U.S. territories and make their fights our
    own as well. Thank you so much.
        Mr. Sablan. Thank you very much. As Chair, I need to sort
    of get some more clarity onto the hearing record because as one
    of the witnesses alluded, the Wong Kim Ark case was decided on
    as a racist case. Professor Villazor, would you like to
    explain? Because my understanding is that United States v. Wong
    Kim Ark was a landmark decision of the U.S. Supreme Court which
    held that a child born in the United States of parents of
    Chinese descent who at the time of this birth are subjects of
    the Emperor of China but have a permanent domiciliary and
    residence of the United States. Can you please explain in more
    detail the Wong Kim Ark, just so the hearing record reflects
    that?
        Dr. Cuison-Villazor. Yes. Thank you, Congressman. Wong Kim
    Ark is indeed a landmark decision by the Supreme Court. In
    interpreting the 14th Amendment, the Supreme Court held that
    anyone who is born in the United States is a U.S. citizen
    subject to the jurisdiction thereof under the 14th Amendment
    Citizenship Clause. So, I am a bit surprised, actually, that
    Wong Kim Ark has been described here as a racist case. Far from
    that, I argue because it was at this time that the Chinese
    Exclusion Act was operating to exclude Chinese from our U.S.
    borders. So, Wong Kim Ark is an important opinion with respect
    to strengthening what the Citizenship Clause means.
        Mr. Sablan. Thank you. Dr. Immerwahr?
        Dr. Immerwahr. Thank you so much.
        I think it is important to distinguish a ruling made by
    racists from a racist ruling. The argument that we are making
    here is that the Insular Cases are not only rulings made by
    racists who reason racially as they do so but that the ruling
    itself has a racially discriminatory outcome. Wong Kim Ark goes
    the other way. If the suggestion is that any ruling made by
    anyone who had discriminatory racial views should be overturned
    that would be the entire 19th century right there.
        What we are pointing out here is that the Insular Cases are
    decided by a racist ruling that is relevant, and the racism of
    the judges is sort of core and not incidental to the ruling.
        Mr. Sablan. All right. Thank you very much. I see having no
    other--Ms. Plaskett--is Ms. Plaskett on?
        Ms. Barnes. Mr. Chairman, if I may, Vice Speaker Tina Muna
    Barnes from Guam. If I could just add a tiny note.
        Mr. Sablan. Make it short, please.
        Ms. Barnes. Yes. I truly believe that Congress does not
    have to wait. This is the opportunity for this Committee to
    propose sweeping legislation to address these inequities in the
    territories, protect our individual cultures, and pursue self-
    determination, and I truly appreciate what is happening today
    because this is a time where we can take this opportunity to
    move forward. Thank you for that input, Mr. Chair.
        Mr. Sablan. Yes. Well, self-determination I think would be
    an entirely separate issue from today's hearing, but anyway, I
    want to thank the witnesses for their testimony--this is a
    really good hearing--and the Members for their questions. The
    members of the Committee may have some additional questions for
    the witnesses, and we will ask you to please respond to those
    in writing. Under Committee Rule 3(o), members of the Committee
    must submit witness questions within 3 business days following
    the hearing, and the hearing record will be held open for 10
    business days for these responses. If there is no further
    business----
        Miss Gonzalez-Colon. Mr. Chairman?
        Mr. Sablan. Yes, Miss Gonzalez-Colon.
        Miss Gonzalez-Colon. Mr. Chairman, I just want to introduce
    to the record the book of ``The De Facto Incorporated, U.S.
    Territory of Puerto Rico'' of Mr. Gregorio Igartua. We will
    send it to the Committee, and the book of the Chief Justice of
    Puerto Rico, Gustavo Gelpi, ``The Constitutional Revolution of
    Puerto Rico and the other U.S. Territories.'' I think it is an
    important lecture for this Committee, and I will also submit to
    the record other further questions. Thank you, Mr. Chairman. I
    yield back.
        Mr. Sablan. With no objection. You have up until 5 o'clock
    today, I think, or the end of this hearing, whichever first
    occurs.

        [The information follows:]

    Submission for the Record by Rep. Gonzalez-Colon

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    .eps                                ------

        Mr. Sablan. Without objection, the Committee stands
    adjourned.

        [Whereupon, at 2:51 p.m., the Committee was adjourned.]

    [LIST OF DOCUMENTS SUBMITTED FOR THE RECORD RETAINED IN THE COMMITTEE'S
                                OFFICIAL FILES]

    Submissions for the Record by Rep. Sablan

      --  Testimony on H. Res. 279 by Donna M. Christensen, MD,
                Former Member of Congress, U.S. Virgin Islands

    Submissions for the Record by Rep. Soto

      --  Remarks to the Committee on H. Res. 279

    Submissions for the Record by Rep. Radewagen

      --  Article titled, ``Asking judges to decide status
                threatens self-determination'' by Dr. Peter S.
                Watson, Pacific Island Times, May 25, 2021

    Submissions for the Record by Rep. Gonzalez-Colon

      --  Book titled, ``The Constitutional Evolution of Puerto
                Rico and Other U.S. Territories (1898-Present),''
                by Gustavo A. Gelpi, 2017

    Submissions for the Record by Gov. Guerrero of Guam

      --  Letter to Chairman Grijalva dated May 12, 2021 re:
                testimony on H. Res. 279

    Submissions for the Record by Witnesses

        Vice Speaker Barnes

      --  Author's Report on Resolution No. 56-36

      --  Supplement to the Author Report on Resolution 56-36 (COR)

        Dr. Peter Watson

      --  Commentary and Rebuttal for the Record

    Other Submissions for the Record

        ACLU

      --  Letter of support for H. Res. 279, dated May 10, 2021

        Charles Ala'ilima, America Samoa

      --  Statement for the Record on H. Res. 279

      --  Article titled, ``Citizenship in Empire: The Legal
                History of U.S. Citizenship in American Samoa,
                1899-1960'' by Ross Dardani, American Journal of
                Legal History 2020, 60, 311-356.

      --  Amicus Brief, Samoan Federation of America, Tenth Circuit
                U.S. Court of Appeals, United States of America;
                U.S. Department of State; Michael R. Pompeo and The
                American Samoa Government and the Hon. Aumua Amata
                v. John Fitisemanu, Pale Tuli, Rosavita Tuli, and
                Southern Utah Pacific Islander Coalition, May 12,
                2020

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