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


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

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

                          LEGISLATIVE HEARING

                              BEFORE THE

                     COMMITTEE ON NATURAL RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                    ONE HUNDRED SEVENTEENTH CONGRESS

                             FIRST SESSION

                               __________

                        Wednesday, May 12, 2021

                               __________

                            Serial No. 117-4

                               __________

       Printed for the use of the Committee on Natural Resources
       
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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

                              ----------                              
                                                                   Page

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

Statement of Members:

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

Statement of Witnesses:

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

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

Additional Materials Submitted for the Record:

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

    Submissions for the Record by Representative Radewagen

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

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

    Submissions for the Record by Representative Gonzalez-Colon

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

    Submissions for the Record by Lieutenant Governor Ale

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



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

                              ----------                              


                        Wednesday, May 12, 2021

                     U.S. House of Representatives

                     Committee on Natural Resources

                             Washington, DC

                              ----------                              

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

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

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

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

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

                                 ______
                                 

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

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

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

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

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

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

                                 ______
                                 

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

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

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

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

                                 ______
                                 

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

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

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

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

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

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

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

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

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

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

    Thank you.

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

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

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

                                 ______
                                 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

                                 ______
                                 

Submissions for the Record by Lt. Governor Ale

                             OFFICE OF THE GOVERNOR
                                  AMERICAN SAMOA GOVERNMENT

                                                     March 19, 2021

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

    Dear Governor Torres:

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

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

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

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

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

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

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

            Sincerely,

                                         Lemanu P.S. Mauga,
                                                           Governor

                                 ______
                                 

                             OFFICE OF THE GOVERNOR
                                  AMERICAN SAMOA GOVERNMENT

                                                     March 19, 2021

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

    Dear Governor Pierluisi:

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

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

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

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

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

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

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

            Sincerely,

                                         Lemanu P.S. Mauga,
                                                           Governor

                                 ______
                                 

                             OFFICE OF THE GOVERNOR
                                  AMERICAN SAMOA GOVERNMENT

                                                     March 19, 2021

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

    Dear Governor Bryan:

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

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

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

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

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

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

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

            Sincerely,

                                         Lemanu P.S. Mauga,
                                                           Governor

                                 ______
                                 

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

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

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

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

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

                                 ______
                                 

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

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

                                 ______
                                 

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

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

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

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

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

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

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

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

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

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

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

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

               Harm of Insular Cases ``Not Hypothetical''

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

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

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

                               Conclusion

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

                                 ______
                                 

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

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

                                 ______
                                 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

                                 ______
                                 

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

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

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

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

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

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

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

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

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

                                 ______
                                 

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

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

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

    [The information follows:]

Submissions for the Record by Rep. Radewagen

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

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

I.  An Overview of Insular Case Law

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

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

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

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

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

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

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

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

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

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

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

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

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

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

II.  U.S. Citizenship and Insular Cases

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

                                 ______
                                 

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                                 .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]