[House Hearing, 117 Congress]
[From the U.S. Government Publishing Office]
H. RES. 279, ``INSULAR CASES RESOLUTION''
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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
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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
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CONTENTS
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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''
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Wednesday, May 12, 2021
U.S. House of Representatives
Committee on Natural Resources
Washington, DC
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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\
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\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:]
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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
[all]