Toward Self-Determination in the U.S. Territories: The Restorative Justice Implications of Rejecting the Insular Cases

Sarah M. Kelly January, 2023

Abstract

Conservatives and liberals alike are increasingly calling for condemnation of the Insular Cases —a series of U.S. Supreme Court cases from the early 1900s, in which the Court developed the doctrine of territorial incorporation to license the United States’ indefinite holding of overseas colonial possessions. In March 2021, members of the U.S. House of Representatives introduced House Resolution 279, which declares that the Insular Cases should be rejected as having no place in U.S. constitutional law. Moreover, in 2022, Justice Gorsuch called for the Supreme Court to squarely overrule the cases.

For many, rejecting the Insular Cases is a long-overdue reckoning for U.S. colonialism. Nonetheless, some representatives and scholars from the U.S. territories have raised concerns about potential implications for existing local laws in the territories. Many of these local laws protect Indigenous territorial peoples from further colonial harms. If the proposed bill or Supreme Court’s overruling of the cases functioned to extend the U.S. Constitution in full to the territories, these laws may be found invalid under current constitutional jurisprudence.

This Article employs a contextual framework for Indigenous peoples to explore the nuanced restorative-justice implications of rejecting the Insular Cases . It emphasizes the varying perspectives of Indigenous peoples of the present-day U.S. territories, who would be most impacted by the measure. Finally, flowing from this restorative justice framework, this Article demands that any resolution to the Insular Cases forward the human rights principle of self-determination for Indigenous peoples—not mere equality.

“[R]eckoning must be done with great care, and with an eye toward doing no further harm to the territories, particularly to the indigenous peoples therein.”¹

Introduction

The Insular Cases , a series of opinions issued by the U.S. Supreme Court beginning in 1901, are widely denounced as creating a “separate and unequal” doctrine for the peoples of the U.S. territories.² In 2021, representatives from four of the five U.S. territories—Guam, the Commonwealth of the Northern Mariana Islands (“CNMI”), the U.S. Virgin Islands (“USVI”), and Puerto Rico—“called on the U.S. House of Representatives to pass a resolution condemning the Insular Cases , largely because of their markedly racist underpinnings and their sharp constriction of U.S. territorial rights.”³ In an “exciting time[]” in U.S. history,⁴ powerful U.S. legal advocacy organizations joined in to support the proposed bill, House Resolution 279 (“H.R. 279”),⁵ in “a quest to reckon with this particular chapter [of U.S.] history.”⁶ Moreover, in 2022, calls to “squarely overrule” the Insular Cases resounded in the U.S. Supreme Court itself.⁷

Some legal scholars, representatives, and advocates, however, particularly those with roots in the U.S. territories, have expressed reservations about rejecting the Insular Cases .⁸ Indeed, Indigenous human rights lawyer and writer from Guam, Julian Aguon, among others, submitted testimony offering only “qualified support” of H.R. 279.⁹ Aguon denounced the racist and colonial roots of the Insular Cases but recognized that federal courts have since repurposed them to benefit the peoples of the U.S. territories.¹⁰ For Aguon, “the only real remaining import of the Insular Cases today is that they contemplate the ability of unincorporated territories to ‘break out’ of the Union[,]” and thus provide a conceivable path toward political self-determination for the Indigenous peoples of the territories.¹¹ Similarly, when the U.S. Supreme Court declined to consider a case in October 2022 through which it could have overruled the Insular Cases ,¹² American Samoan Congresswoman Aumua Amata Radewagen declared the decision a show of respect for territorial self-determination.¹³

Legal scholars have just begun examining how an eradication of the Insular Cases could impact self-determination for the Indigenous peoples of the U.S. territories.¹⁴ In light of the complexities of these contrasting viewpoints, this Article explores whether rejecting the Insular Cases through H.R. 279—or a direct Supreme Court overruling of the cases— is an appropriate restorative response to the harms of U.S. colonization on the present-day territories. It intentionally emphasizes the perspectives of the Indigenous peoples¹⁵ of the U.S. territories, who would be most impacted by these measures.¹⁶

To meaningfully grapple with the potential impacts of condemning the Insular Cases , this Article employs a contextual framework proposed

ā¹⁷ by K naka Maoli (Native Hawaiian) legal scholar D. Kapua(cid:1931)ala Sproat, through which she sought to refine existing legal frameworks to more wholly take into account the particular interests and values of Indigenous peoples.¹⁸ A contextual legal approach embraces a goal of restorative justice, which is “grounded in notions of ‘social healing through justice.’”¹⁹ As further developed infra , Sproat intimated that “tailoring this contextual legal framework for Native Peoples requires attention to four realms (or ‘values’) of restorative justice embodied in the human rights principle of self-determination: (1) cultural integrity; (2) lands and natural resources; (3) social welfare and development; and (4) self-government.”²⁰ Applied to H.R. 279, these four realms capture the intricacies and delicacies of rejecting the Insular Cases and ultimately suggest that while advocates are justified in repudiating the roots of the Insular Cases , something more is needed to decolonize the United States’ relationship with the territories.

Painting with a broad brush, Part I reviews the context and history of the United States’ “acquisition” of its present-day territories, the development of the Insular Cases , the harmful on-the-ground impacts of the Insular Cases , and how the peoples of the U.S. territories have begun to retool the Insular Cases to create a cultural and political safe-space in the constitutional void carved out by the Insular Cases ’ territorial incorporation doctrine. Part II sketches the outlines of Sproat’s contextual legal framework, developed from the earlier insights of legal realism, critical legal analysis, and critical race theory with the particular interests and values of Indigenous peoples in mind. Part III employs this framework to investigate the potential impacts of H.R. 279 in the four delineated areas of cultural integrity, lands and other natural resources, social welfare and development, and self-government. Finally, using the resultant insights, Part IV concludes by highlighting the necessity for “something more” alongside H.R. 279 to ensure that it does not impose further colonization in the name of equality, but rather advances the ultimate goal of self-determination for the Indigenous peoples of the U.S. territories.

I. The Insular Cases in Context

House Resolution 279 seeks to reject the continued application of the Insular Cases , a series of cases firmly rooted in the political and economic reality of U.S. colonialism.²¹ Legal scholars Ediberto Román and Theron Simmons define colonialism broadly to include the “oppression, humiliation, or exploitation of indigenous peoples.”²² To provide the necessary history and context for a meaningful analysis of the bill, this Part briefly describes the United States’ colonial “acquisition” of the U.S. territories, how the Insular Cases developed out of this historical context, the harmful impacts of the Insular Cases , and how federal courts have, in some cases, recently repurposed the Insular Cases to further cultural preservation and self-determination for the Indigenous peoples of the territories.

A. A Brief History of the United States’ “Acquisition” of the U.S. Territories

The story of the Insular Cases begins with the U.S. territories themselves. Today, the United States claims five permanently inhabited territories: Puerto Rico, Guam, American Samoa, the USVI, and the CNMI.²³ The United States’ domination of these islands grew out of a national ideology and practice of expansionism.²⁴ Settlors gradually took possession of the lands that constitute the present-day contiguous U.S. states through genocide, war, and other tools.²⁵ Expansionists then began looking toward economic and military interests in the Caribbean and Pacific.²⁶

The Spanish-American War emerged as a culmination of this expansionism.²⁷ Through the war, in 1898, the United States took as colonies,²⁸ and labeled as territories, Puerto Rico, the Philippines, and Guam.²⁹ It annexed Hawai(cid:1931)i that same year, five years after the illegal overthrow of the Kingdom of Hawai(cid:1931)i.³⁰ American Samoa became a U.S. territory by treaty of cession beginning in 1900,³¹ following significant colonial interference by Germany, Britain, and the United States, who each fought for power over the islands.³²

In 1917, the United States purchased the islands that now constitute the USVI from another colonial power, Denmark.³³ Finally, in 1947, the United States entered a Trusteeship Agreement with the United Nations (“UN”).³⁴ Under the agreement, the United States became the administrator of the Trust Territory of the Pacific Islands, including the islands that now constitute the CNMI.³⁵ In 1975, through a covenant with the United States, the CNMI’s status shifted to a commonwealth.³⁶ The American empire was thus established. But the future of the islands was unclear.

Before the United States’ imperialist expansion into the Caribbean and Pacific, it was assumed that every U.S. territory would eventually become a state.³⁷ The Territorial Clause of the U.S. Constitution granted Congress powers to admit new states and govern territories.³⁸ Although the Constitution contained no express guarantee that these territories would become states,³⁹ early federal case law held that the United States only has the power to acquire territories with a path to eventual statehood.⁴⁰ For the territories in the present-day contiguous states, Hawai(cid:1931)i, and Alaska, it was understood that they would become states once enough white men had settled in the territories.⁴¹

But with the acquisition of the post-Spanish American War territories came shifted motivations for expansion and racist objections to extending U.S. citizenship to the peoples of Puerto Rico, Guam, and the Philippines.⁴² The new territories were geographically removed, had almost no white U.S. settlers living within, and their inhabitants were Indigenous peoples of color.⁴³ Rather than conquer these lands for settlement, the United States planned to use the islands for economic exploitaexploitation and to establish strategic naval bases.⁴⁴

Congress initially planned to impose U.S. citizenship on Puerto Ricans through the Foraker Act.⁴⁵ Politicians, however, expressed concern that if the United States pursued statehood for Puerto Rico, it would establish a precedent of statehood for the Philippines as well.⁴⁶ One Congressman, for example, declared that Filipinos are “whole different races of people from us. Asiatics, Malays, Negroes and mixed blood. They have nothing in common with us and we cannot assimilate them. They can never be clothed with the rights of American citizenship nor their territory admitted as a State[.]”⁴⁷ Instead, the congressmen proposed to “establish a precedent for the Filipinos, the unruly and disobedient; by disciplining and punishing Puerto Rico, the well-behaved[.]”⁴⁸ For the first time in U.S. history, the new territories would not proceed toward statehood.

Because of its own revolutionary history and professed liberal ideals, however, it was not in the domestic or international political interests of the United States to expressly label itself as a colonial power ruling over geographically distant, non-citizen peoples without constitutional con-straints.⁴⁹ Thus the United States began to develop legal fictions “to allow United States global influence without fully accepting the people of color that inhabited the newly acquired territories.”⁵⁰

B. Crafting of the Insular Cases’ Doctrine of Territorial Incorporation

Early versions of the Insular Cases ’ central legal fiction, what would eventually become known as the “doctrine of territorial incorporation,” were developed by legal scholars and think tanks.⁵¹ A series of articles published in the Harvard Law Review debated whether the U.S. Constitution applied to the new territories.⁵² The most influential of these articles was written by Abbott Lawrence Lowell, who argued that the U.S. Constitution does not automatically apply to the territories; rather, the treaties by which they were annexed determined their relationship with the United States, and this relationship determined what constitutional rights were possessed by inhabitants.⁵³

When cases challenging the relationship between the United States and the new territories were appealed to the U.S. Supreme Court, the justices employed these academic fictions to navigate their analyses.⁵⁴ The justices largely ignored earlier federal case law requiring territories to have a path to eventual statehood because it did not fit the new political vision for the territories.⁵⁵ The first nine Insular Cases were issued on May 27, 1901.⁵⁶ In a central case establishing the territories’ status within the American polity,⁵⁷ Downes v. Bidwell ,⁵⁸ Justice Brown upheld the constitutionality of Puerto Rico’s Organic Act, reasoning that Puerto Rico “is a territory appurtenant and belonging to the United States, but not a part of the United States[.]”⁵⁹ In doing so, “the Supreme Court sanctioned a colonial regime that has existed for over one hundred years to the present day[.]”⁶⁰

Justice White’s Downes concurrence proposed the doctrine of territorial incorporation that eventually prevailed in U.S. jurisprudence.⁶¹ Relying on the earlier academic articles, Justice White suggested that whether a particular constitutional provision applies in a territory is determined by the kind of territory involved, and the kind of territory is determined by its treaty of acquisition.⁶² Justice White distinguished between territories that are “incorporated,” or destined for statehood, where the Constitution applies in full, and those that are “unincorporated,” or not expressly destined for statehood, where only “fundamental rights” apply.⁶³ White determined Congress did not incorporate Puerto Rico into the United States, so it “is not subject to all the restrictions of the Constitution.”⁶⁴ All five present-day permanently inhabited territories are now deemed “unincorporated,” rendering them indefinitely-held colonial possessions.⁶⁵

Although the Supreme Court made clear that the Constitution did not apply in full to unincorporated territories, it did not initially define what it meant by “fundamental rights[.]”⁶⁶ The Court vaguely stated that fundamental rights are those “fundamental limitations in favor of personal rights” that “form the basis of all free government.”⁶⁷ In determining whether specific rights are fundamental, the Court has since examined the practical implications of governmental actions.⁶⁸ A constitutional right is deemed “fundamental” if extending that constitutional provision to a territory would not be “impracticable and anomalous[.]”⁶⁹

Under the flexible “impracticable and anomalous” test, lower courts are left with significant leeway in interpreting what rights are “fundamental” such that they restrict governmental action in relation to the territories.⁷⁰ As this Article will show, this flexible framework has allowed courts to both: (1) perpetuate harms to the peoples of the U.S. territories by refusing to restrict Congress’s plenary power over the territories; and, (2) at times, benefit the peoples of the territories by upholding local laws designed to further cultural preservation and self-determination.

C. Continuing Material Harms of the Insular Cases

As the academic and Congressional debates and the cases themselves demonstrate, the Insular Cases are steeped in racist justifications for the subordination of the peoples of the territories.⁷¹ Albert Memmi defined racism within the imperial context as “the generalized and final assigning of values to real or imaginary differences, to the accuser’s benefit and at his victim’s expense, in order to justify the former’s own privileges or aggression.”⁷² This assigning of differences is evident in the history of the Insular Cases , which, at the expense of the sovereignty of the Indigenous peoples of the territories and to the economic and political benefit of the United States, purported to provide a “neutral” legal justification for the colonial conquest and exploitation of the territories.⁷³

The Insular Cases are not just relics of a colonial and racist past— they continue to have concrete, human impacts on the peoples of the territories today.⁷⁴ Legal scholar Susan K. Serrano describes how the Insular Cases ’ “discourse of exclusion . . . frame[s] territorial peoples as perpetual ‘foreigners,’ ‘outsiders,’ and ‘others,’” and thereby facilitates their continued marginalization and subordination “in far reach-ing ways— from the political to the economic, and the social to the cultural.”⁷⁵ For example, in the political realm, the Insular Cases legitimize withholding political power from the peoples of the territories, who are U.S. citizens and nationals⁷⁶ but have no right to vote for the U.S. president and have no voting representative in Congress.⁷⁷ In the economic realm, the U.S. Supreme Court has used the framework of the Insular Cases to legitimize providing lesser federal benefits to the peoples of the U.S. territories, even where there is more economic need.⁷⁸ Julian Aguon further describes the psychological impacts of the Insular Cases as “real violence inflicted on the psyches of folks who must find our way in a country that neither wants us nor wants to let us go.”⁷⁹

Ultimately, the Insular Cases ’ interpretation of the Territorial Clause licenses Congress’s indefinite plenary power over the U.S. territories, meaning that the U.S. federal government has few restrictions over how it can impose its will in the territories.⁸⁰ Scholar Efrén Rivera Ramos argues:

The conceptual scheme of the Insular Cases is entirely incompatible with any notion of self-determination . . . . [Self-determination,] at a minimum [,] . . . implies the right . . . of a people or group . . . to determine its own status and associations with other peoples or groups and to fashion for itself the organizing principles of its social existence. The logic of the Court’s discourse, however, presupposes the plenary power of the metropolitan state to determine the political condition and the civil and political rights of the people of the acquired territory.⁸¹

In these ways, the harms of the Insular Cases include the ongoing denial of self-determination for the peoples of the U.S. territories.

D. Repurposing of the Insular Cases toward Self-Determination

Yet in some cases, the flexible framework of the Insular Cases has permitted federal courts to uphold local territorial laws intended to benefit the peoples of the U.S. territories where the U.S. Constitution may have otherwise rendered them invalid.⁸² Some scholars describe this use of the Insular Cases as a shield, in contrast to the U.S. courts’ earlier weaponizing.⁸³ A recent Harvard Law Review Developments in Law chapter “contend[ed] that the Insular Cases , which have long been associated with colonialism and racism, have now become ‘bulwarks for cultural preservation.’”⁸⁴

For example, in the CNMI, article XII of the Northern Mariana Islands (“NMI”) Constitution restricts the acquisition of interests in land to persons of Northern Marianas descent,⁸⁵ defined by blood quantum.⁸⁶ For Indigenous groups other than federally-recognized tribes, such restrictions are typically struck down as racially discriminatory in violation of the equal protection guarantee of the U.S. Constitution.⁸⁷ However, in Wabol v. Villacrusis , the United States Court of Appeals for the Ninth Circuit upheld the CNMI’s land alienation restriction laws.⁸⁸ The court employed the Insular Cases ’ framework, determining that since the CNMI is unincorporated, only “fundamental” constitutional rights apply in the territory, and although the general guarantee of equal protection applies in the CNMI, the specific right to acquire permanent or long-term interests in land in the NMI is not a “fundamental right” for the purposes of the Territorial Clause.⁸⁹ The court reasoned that “con-stru[ing] the equal protection clause to force the United States to break its pledge to preserve and protect NMI culture and property” would be “impracticable and anomalous.”⁹⁰

Similarly, the Harvard Developments in Law chapter describes Tuaua v. United States ,⁹¹ a case employing the same framework to examine whether the U.S. Constitution guarantees birthright citizenship to per-sons born in American Samoa, as “represent[ing] ‘an important shift in the federal courts’ use of the doctrine [of territorial incorporation].’”⁹² Unlike in the other U.S. territories, people born in American Samoa are not U.S. citizens, but U.S. nationals,⁹³ meaning that although they can reside in the states, they cannot hold many federal jobs, vote in federal elections, and more.⁹⁴ In Tuaua , the U.S. Court of Appeals for the District of Columbia determined that since the text of the Citizenship Clause is ambiguous as to whether American Samoa is “in the United States,” the Insular Cases ’ analytical framework applied.⁹⁵ Acknowledging that the people of American Samoa “have not yet formed a collective consensus in favor of United States citizenship[,]” the court found that it would be “anomalous to impose citizenship over the objections of the American Samoan people themselves[.]”⁹⁶

II. A Restorative Justice Framework for Indigenous Peoples

The manufacturing of the territorial incorporation doctrine through the Insular Cases and its subsequent repurposing by the peoples of the U.S. territories demonstrates that the law is not neutral, but rather a tool influenced by political winds that can be used either to hinder or further justice. Early legal theory in the 1800s known as legal formalism framed the law as “a neutral tool that produced justice by mechanically applying legal rules to cases.”⁹⁷ Progressive legal movements in the 1900s, including legal realism, critical legal studies, and then critical race theory, criticized this formalist notion as failing to explain and predict “how the legal process actually works.”⁹⁸ Flowing from these earlier intellectual genealogies⁹⁹ and while grappling with environmental justice claims for the waters of East Maui, Professor D. Kapua(cid:1931)ala Sproat proposed a new developing contextual framework in her article Wai Through Kānāwai: Water for Hawai(cid:1201)i’s Streams and Justice for Hawaiian Communities , tailored to take into account the unique interests and values of Indigenous peoples.¹⁰⁰

Sproat identified that for Indigenous peoples, history has shown that the legal formalist approach has “legitimized colonialism, the confiscation of land, the destruction of culture, and the destabilization of self-government.”¹⁰¹ This is exemplified in part by the Insular Cases . In contrast, a contextual approach to the law “assesses both how the law operates and should operate[,]” and in doing so, embraces a goal of restorative justice.¹⁰² For Indigenous peoples, Sproat opined that restorative justice does not entail “equal treatment,” but rather forwarding self-determination in recognition of the unique harms of colonization.¹⁰³ “[S]pecifically, tailoring this contextual legal framework for Native Peoples requires attention to four realms (or ‘values’) of restorative justice embodied in the human rights principle of self-determination: (1) cultural integrity; (2) lands and natural resources; (3) social welfare and development; and (4) self-government.”¹⁰⁴

These four realms are attentive to colonization’s significant harms to Indigenous peoples.¹⁰⁵ In the first step, an appropriate contextual analysis “must explicitly analyze . . . whether actions or decisions support and restore cultural integrity as a partial remedy for past harms, or perpetuate conditions that continue to undermine cultural survival.”¹⁰⁶ Second, it “must directly analyze . . . whether a particular action perpetuates the subjugation of ancestral lands, resources, and rights, or attempts to redress historical injustices in a significant way.”¹⁰⁷ Third, the framework seeks to “expose whether a given action or decision improves social welfare conditions or perpetuates the status quo of Natives bringing up the bottom of most, if not all, socio-economic indicators.”¹⁰⁸ Finally, the analysis “consider[s] whether a decision perpetuates historical conditions imposed by colonizers or will attempt to redress the loss of self-governance.”¹⁰⁹

Sproat recognized that these four values are “inextricably inter-twined.”¹¹⁰ For Indigenous peoples: cultural integrity inherently depends upon access to lands and natural resources; social welfare depends upon both cultural integrity and access to (and the health of) natural resources; and cultural and political sovereignty dictate who has control over the lands and resources that shape social welfare and cultural integrity.¹¹¹ “Together, these four realms . . . inform the contextual legal analysis of history and current socio-economic conditions necessary to discern the true impacts of actions or decisions on Native Peoples.”¹¹²

The Indigenous peoples of territories have many commonalities in their histories, including similar experiences with colonialism arising from the United States’ military and economic interests in the Pacific and Caribbean.¹¹³ Further, because U.S. courts apply the same legal framework to each of the territories, they experience many similar present-day impacts. Restorative justice for all “U.S. territorial peoples may entail repairing long-standing imbalances of power and agency, and redressing multiple political, economic, cultural, and social harms. For Indigenous inhabitants of the territories in particular, the preservation of their deep connections to the environment (including, where applicable, the return of land), the reclaiming of knowledge systems, language, and life ways, and the regeneration of self-government, are also central to their self-determination and reparative justice.”¹¹⁴

Given the tailoring of Sproat’s framework to the values and interests of Indigenous peoples and its recognition of colonial harms, the framework is a useful tool to examine the restorative justice implications of actions or decisions relating to the U.S. territories. Yet legal scholars have acknowledged that “no single theory of reparative justice [(or restorative justice)] ‘can fit all cultures, all nations, and all peoples.’ Instead, the ‘theory will differ depending on the particular historical context and cultural framework that applies.’”¹¹⁵ Indeed, even among the five permanently inhabited U.S. territories, their differential contexts may require distinct actions or decisions to achieve restorative justice.¹¹⁶ Acknowledging that the bill’s impacts, and thus conclusions about how well it furthers restorative justice, may vary among the five territories, this Article provides specific localized examples to begin to explore the potential impacts of rejecting the Insular Cases .

III. The Restorative Justice Implications of Rejecting the Insular Cases for the Indigenous Peoples

of the U.S. Territories

This Part employs Sproat’s contextual framework to illuminate the justice-impacts of proposed bill H.R. 279 for the Indigenous peoples of the U.S. territories. The professed purpose of H.R. 279 is to repudiate the Insular Cases and their territorial incorporation doctrine as: (1) “contrary to the text and history of the United States Constitution”; (2) “rest[ing] on racial views and stereotypes from the era of Plessy v. Ferguson ”; and (3) contrary to the United States’ “most basic constitutional and democratic principles[.]”¹¹⁷ The Insular Cases have been in place since 1901, and legal scholars and politicians are just beginning to re-envision a new jurisprudential framework for the territories.¹¹⁸ The impacts of the bill, therefore, are in large part unknown. As Justice Gorsuch indicated in his recent call for the U.S. Supreme Court to overrule the Insular Cases , “settling this question right would raise difficult new ones. Cases would no longer turn on the fictions of the Insular Cases but on the terms of the Constitution itself.”¹¹⁹

If the import of H.R. 279—or directly overruling the cases—is simply to call for the U.S. Constitution to apply in full to the territories, its passage may mean that the territories will soon face insurmountable legal challenges to local laws designed to further cultural preservation and self-determination.¹²⁰ These dangers are exemplified by legal challenges faced by Indigenous peoples elsewhere in the Pacific, in the so-called state of Hawai(cid:1931)i.¹²¹ In Rice v. Cayetano , the U.S. Supreme Court struck down a provision in the Hawai(cid:1931)i Constitution that limited the right to vote for the trustees of a state agency designed to administer programs for the benefit of Hawaiians and Native Hawaiians, the Office of Hawaiian Affairs (“OHA”), to qualified Hawaiians.¹²² The provision recognized Hawai(cid:1931)i’s “history of subjugation at the hands of colonial forces” and, accordingly, sought to further Hawaiian self-governance.¹²³ However, since Native Hawaiians are not a federally-recognized tribe¹²⁴ (and because the doctrine of territorial incorporation does not apply to Hawai(cid:1931)i), the Court determined that the provision violated the Fifteenth Amendment because it used ancestry as a proxy for race and thus created an impermissible race-based voting qualification.¹²⁵ Scholars have denounced Rice as “put[ting] at risk not only OHA, but all federal and state programs designed to repair continuing harms to the Hawaiian people[.]”¹²⁶

Like Native Hawaiians, the Indigenous peoples of the U.S. territories are not federally recognized tribes. Where courts have determined that specific constitutional provisions apply to the territories (and thus the Insular Cases ’ framework does not apply), they have sometimes struck down laws like that at issue in Rice .¹²⁷ If H.R. 279 removes the flexible legal framework of the Insular Cases in their entirety, local laws across the territories designed to further Indigenous self-determination and cultural preservation may be at risk of constitutional invalidation.

In light of these pressing concerns, this Part employs Sproat’s contextual framework to analyze H.R. 279. It addresses each of the four interrelated values of self-determination in turn to ultimately assess whether the bill furthers or hinders restorative justice for the Indigenous peoples of the U.S. territories.¹²⁸

A. Impacts on Cultural Integrity

Within the first realm of restorative justice, Sproat’s contextual analysis explores whether H.R. 279 “support[s] and restore[s] cultural integrity as a partial remedy for past harms, or perpetuate[s] conditions that continue to undermine culture survival.”¹²⁹ Building on working definitions developed by anthropologists and sociologists, legal scholar Rose Cuison Villazor describes culture as a dynamic “set of ‘learned traits shared by a group of people’ including beliefs, values, language, and religion.”¹³⁰ The United Nations Declaration on the Rights of Indigenous Peoples affirms the rights of Indigenous peoples to “practise and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures.”¹³¹

Historical and ongoing practices have “treated indigenous cultures as inferior to the dominant cultures.”¹³² Sproat describes the “constant struggle” that Indigenous people face “to maintain culture and traditional lifestyles due to a myriad of factors, including colonization and other pressures of a quickly changing world.”¹³³ These cultural harms are apparent for the Indigenous peoples of the U.S. territories, who have faced threats to their ways of life through, for example, climate change.¹³⁴ Cultural integrity is thus a necessary component of restorative justice because as legal scholars Rebecca Tsosie and Wallace Coffey contend, “[t]radition provides the critical constructive material upon which a community rebuilds itself.”¹³⁵

The Insular Cases themselves “employed . . . damaging cultural representations.”¹³⁶ In Downes v. Bidwell , Justice Henry Billings Brown, also the author of the 1896 U.S. Supreme Court “separate but equal” case Plessy v. Ferguson ,¹³⁷ depicted Puerto Ricans as “peoples of different ‘race[s], habits, laws, and customs’” who “threatened the very heart of white Anglo-Saxon dominance.”¹³⁸ Since H.R. 279 denounces these damaging racist and culturally-offensive representations, the bill may further restorative justice for the U.S. territorial peoples by condemning harmful judicially-sanctioned opinions and thus providing some measure of healing.¹³⁹

In another material sense, however, the flexible framework of the Insular Cases “gives federal courts significant latitude to preserve traditional cultural practices that might otherwise run afoul of the individual rights enshrined in the Constitution[.]”¹⁴⁰ For example, in American Samoa, the traditional Samoan way of life known as fa(cid:1201)a Samoa —also understood as the “ essence of being Samoan”—could be at risk of constitutional invalidation if the Insular Cases are rejected.¹⁴¹ Central tenants of fa(cid:1201)a Samoa “remain central to the Samoan experience and identity” today, including the “(cid:1931) aiga ( family unit), matai system (system of chiefs and leaders), and communal lands.’”¹⁴² Households are organized by (cid:1931) aiga , who are under the authority of matai , who in turn organize the resources to benefit the entire community.¹⁴³

Samoan cultural practices at particular risk of constitutional invalidation include social structures, religious customs, and traditional land practices.¹⁴⁴ American Samoa limits eligibility to serve in the upper house of its territorial legislature to registered matai .¹⁴⁵ In addition, religious observance is enforced by matai through, for example, religious curfews.¹⁴⁶ The American Samoan Constitution makes it the policy to, in part, “protect persons of Samoan ancestry against alienation of their lands and the destruction of the Samoan way of life and language[,]”¹⁴⁷ and local statutes explicitly preserve “[t]he customs of the Samoan people not in conflict with [other laws.]”¹⁴⁸ These traditions may be subject to scrutiny under the Equal Protection Clause, Establishment Clause, and Nobility Clause if the Insular Cases are condemned.¹⁴⁹

In October 2022, the U.S. Supreme Court declined to hear Fitisemanu v. United States .¹⁵⁰ Fitisemanu —like the earlier Tuaua ¹⁵¹—raised the issue of whether the Citizenship Clause requires imposing birthright citizenship on American Samoans.¹⁵² The Supreme Court could have used Fitisemanu to overrule the Insular Cases .¹⁵³ Tapaau Dr. Dan Ag, director of the American Samoa Office of Political Status and Constitutional Review, called Fitisimanu “an existential threat to [the American Samoan] way of life.”¹⁵⁴ Similarly, American Samoa’s non-voting House delegate Congresswoman Aumua Amata Radewagen declared the Supreme Court’s denial of certiorari “a tremendous victory for American Samoa.”¹⁵⁵ She dubbed the decision a show of “respect [for] the self-determination of the people of American Samoa, and the emphasis our people place on preserving our Fa(cid:1931)a Samoa (the Samoan way).”¹⁵⁶

Some legal scholars contend these cultural practices should be upheld even under traditional constitutional frameworks.¹⁵⁷ Ian Falefuafua Tapu, for example, argues that even if the United States imposes the Nobility Clauses on American Samoa, the matai system is nonetheless constitutional.¹⁵⁸ Tapu asserts that because “the matai are elected by consensus of the (cid:1931)aiga or village,” the system satisfies the two underlying principles of the Nobility Clauses—”equality and a representative government that is rooted in a meritocracy.”¹⁵⁹

While these arguments hold merit, H.R. 279 does not acknowledge or account for the possibility that federal courts may invalidate local laws under the traditional constitutional framework. It thus places at risk the cultural survival of American Samoans and other territorial peoples. Indeed, in testifying before the U.S. House of Representatives about H.R. 279, Lieutenant Governor of American Samoa Talauega Eleasalo Va(cid:1931)alele Ale declared, “[t]his 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.”¹⁶⁰

While the Insular Cases themselves furthered racism and cultural imperialism,¹⁶¹ if their legal framework is removed from U.S. jurisprudence without creating an alternative avenue for territorial cultural preservation, Indigenous cultural practices in the territories may be left exposed to constitutional invalidation. H.R. 279, without additional political action to ensure the political and cultural self-determination of the territories, may not further restorative justice in the realm of cultural integrity, particularly for American Samoans.

B. Impacts on Lands and Other Natural Resources

For Indigenous peoples, cultural integrity is also inherently dependent upon access to land and resources.¹⁶² Indigenous self-determination fundamentally requires that Indigenous relationships with lands and other natural resources not be controlled by colonizing groups who have historically employed violence and legal tools, like western property concepts, to seize and exploit lands and natural resources.¹⁶³ A restorative approach to the law must acknowledge this history of land subjugation and seek to restore the relationship of Indigenous peoples to land and other natural resources.¹⁶⁴ Accordingly, Sproat’s second realm of restorative justice analyzes “whether a particular action perpetuates the subjugation of ancestral lands, resources, and rights, or attempts to redress historical injustices in a significant way.”¹⁶⁵

In the U.S. territories, these colonial harms to lands and natural resources have largely taken the form of military occupation, environmental exploitation, and climate change.¹⁶⁶ In Guam, for example, roughly a third of the land is occupied by the U.S. military,¹⁶⁷ and the United States is in the process of further expanding its military presence.¹⁶⁸ Julian Aguon describes this buildup as “the latest wave of unilateral action by the United States . . . in a long and steady diet of dispossession” over five centuries of colonization.¹⁶⁹ The people of Puerto Rico, on the other hand, successfully ousted the U.S. Navy from its control of land in Vieques and Culebra,¹⁷⁰ but continue to be subject to the United States’ environmental and economic exploitation, such as through fossil-fuel dependent electricity plants and genetically modified organisms (“GMO”) experimentation.¹⁷¹

The U.S. territories’ status as unincorporated, however, has also meant that unlike in previously “incorporated” territories like Hawai(cid:1931)i, which were destined for statehood, the present-day territories have not suffered as much settler colonialism.¹⁷² The goal of acquiring these territories was not for settlement, but to bolster the United States’ international political status as a world power.¹⁷³ Indeed, several U.S. territories have successfully implemented restrictions to land alienation such that only Indigenous peoples or those with other roots in the territories can own or lease lands. In the CNMI, for example, the territory’s constitution restricts the “acquisition of permanent and long-term interests in real property . . . to persons of Northern Marianas descent.”¹⁷⁴ In American Samoa, a similar blood quantum law restricts the alienation of lands by requiring that individuals have at least 50% American Samoan blood to own property or lease it for more than fifty-five years.¹⁷⁵

As described supra , the Ninth Circuit Court of Appeals deployed the Insular Cases to uphold CNMI’s land alienation restrictions in Wabol v. Villacrusis .¹⁷⁶ Although the equal protection guarantee applies to the CNMI generally, the court determined that the specific right to acquire permanent or long-term interests in Northern Marianas Island land is not a “fundamental right,” so it should not be imposed in the territory.¹⁷⁷ The court reasoned that application of that right to the CNMI would be “impracticable and anomalous” because “land is principally important in the Commonwealth not for its economic value but for its stabling effect on the natives’ social system. The land alienation restrictions are properly viewed as . . . preventing exploitation[.]”¹⁷⁸

Legal scholars Susan K. Serrano and Ian Falefuafua Tapu pose a critical question for the future of the territories: “In the absence of the Insular Cases , would a court, as the Ninth Circuit did in Wabol v. Villacrusis , hold that ancestry-based restrictions on certain acquisitions of land are lawful restorative measures to promote the economic advancement and self-sufficiency of Native peoples?”¹⁷⁹ The answer to this question is not entirely clear because the traditional constitutional framework is generally unfriendly to ancestry-based classifications.¹⁸⁰ However, the high court in American Samoa employed the traditional equal protection framework to uphold the territory’s land alienation restrictions.¹⁸¹ The court found that the restrictions do create racial classifications, but held that they survive strict scrutiny because preserving the lands for Samoans is a compelling state interest and the statute is narrowly tailored.¹⁸² While it is unclear whether overruling the Insular Cases would necessarily invalidate these laws, since H.R. 279 does not account for the possibility, the bill may further land dispossession in the territories rather than redress the historical injustices of environmental exploitation and more. In this realm of the restorative justice framework too, then, H.R. 279 raises legitimate con-cerns.

C. Impacts on Social Welfare and Development

While condemning the Insular Cases may cause harm in the realms of cultural integrity and lands and natural resources, the action may also provide some economic relief to territorial peoples. If the U.S. Constitution applied in full to the territories, the United States would have to offer the full measure of federal welfare benefits to territorial residents.¹⁸³ The poverty rates in the territories are high, due largely to the United States exploiting their natural resources and fostering economic dependency in order to retain control.¹⁸⁴ In 2020, for example, nearly 44% of residents of Puerto Rico lived below the poverty line, compared to only about 11% of residents of the states.¹⁸⁵ Yet Congress has often chosen to withhold federal benefits from the U.S. territories.¹⁸⁶ And relying on the Insular Cases , federal courts have largely refused to check this power.¹⁸⁷

Legal scholar Stephen James Anaya articulates these economic and human harms to Indigenous peoples as resulting from “two distinct but related historical phenomena”: first, “the progressive plundering of indigenous peoples’ lands and resources over time, processes that have impaired or . . . devastated indigenous economies and subsistence life and left indigenous people among the poorest of the poor”; and second, “pat-terns of discrimination that have tended to exclude members of indigenous communities from enjoyment of the social welfare benefits generally available in the states within which they live.”¹⁸⁸ Since restorative justice by definition entails repairing wrongdoing, the third realm of Sproat’s developing framework acknowledges these harms and, accordingly, seeks to “expose whether a given action or decision improves social welfare conditions or perpetuates the status quo of Natives bringing up the bottom of most, if not all, socio-economic indicators.”¹⁸⁹

In exercising its plenary powers under the Territorial Clause, Congress has frequently denied the territories the full measure of federal benefits that it provides to the states,¹⁹⁰ even though residents pay billions of dollars in taxes.¹⁹¹ For example, for Medicaid funding,¹⁹² the federal government reimburses local territorial governments at a lower rate than it offers to the fifty states and the District of Columbia.¹⁹³ Moreover, Congress extended the Supplemental Security Income (“SSI”)¹⁹⁴ program to the CNMI in 1976,¹⁹⁵ but does not offer it to Guam, the USVI, Puer- to Rico, or American Samoa.¹⁹⁶

In a line of federal benefits cases, federal courts have largely refused to check Congress’s plenary power in this realm.¹⁹⁷ For example: in Califano v. Gautier Torres , the U.S. Supreme Court held that the denial of SSI benefits to residents of Puerto Rico did not unconstitutionally violate the plaintiffs’ right to travel;¹⁹⁸ and in Harris v. Rosario , the Court determined that providing lower levels of financial assistance through the Aid to Families with Dependent Children (“AFDC”)¹⁹⁹ program to families residing in Puerto Rico than to those in the states did not violate the equal protection guarantee.²⁰⁰ In 2022, the U.S. Supreme Court again blocked challenges to these benefit schemes in United States v. Vaello Madero , holding that the denial of SSI benefits to residents of Puerto Rico did not violate equal protection.²⁰¹ Legal challenges to federal benefit schemes have so far changed little on-the-ground for families in the territories with financial need.

In this socio-economic realm, therefore, H.R. 279 appears to more appropriately further restorative justice because it may force the United States to extend the full measure of federal benefits to the territories. It may thus have positive human impacts in the areas of health, education, standards of living, and the survival of peoples in the territories.²⁰² Equalizing federal benefits between the states and territories is a significant action for families in financial need. It may further provide the choice to some Indigenous peoples and peoples with roots in the territories to remain in the islands rather than follow others to the mainland United States.²⁰³

On the other hand, solely extending existing federal benefits to the U.S. territories is not sufficient to restore the islands’ socio-economic well-being. Adequate restoration for the harms of intentional U.S. economic exploitation and colonialism would require much larger economic and social reparations.²⁰⁴ Moreover, some may argue that extending federal benefits does not further economic and social self-determination, particularly considering the United States’ history of intentionally fostering the economic dependence of the territories in order to continue realizing their exploitation.²⁰⁵

Finally, as acknowledged by Professor Sproat, social welfare is also deeply tied to Indigenous peoples’ cultural veracity and access to lands and natural resources.²⁰⁶ Thus, if condemning the Insular Cases has the potential to harm the other realms of restorative justice, social welfare may in turn also be harmed.²⁰⁷ True restorative justice for the Indigenous peoples of the territories in this realm would require far more expansive monetary compensation, as well as other types of structural changes, including restoring and maintaining their access to lands and resources, on the terms of the peoples of the territories.

D. Impacts on Self-Government

Key to the human rights principle of self-determination is the ability of Indigenous peoples “to manage their political and cultural sovereignty.”²⁰⁸ “Years and generations of colonization” has facilitated the “nondominant positions [of Indigenous peoples] within the states where they live” such that today, Indigenous peoples are typically “denied full and equal participation in the political processes that have sought to govern them.”²⁰⁹ In recognition of this loss of self-governance and political power, the final realm of Sproat’s restorative justice framework “consider[s] whether a decision perpetuates historical conditions imposed by colonizers or will attempt to redress the loss of self-governance.”²¹⁰

In the U.S. territories, while residents are subject to the plenary power of Congress, their political representatives cannot vote on the measures that deeply affect them.²¹¹ Indeed, one of the great ironies of H.R. 279 is that the peoples of the U.S. territories (or their representatives) are not able to vote on it.²¹² Moreover, although the laws governing the relationship between the United States and several of the territories explicitly state that the peoples therein have a right to self-government, the same documents require United States approval for nearly all significant political matters, including the adoption of local constitutions.²¹³ In several of the territories, these laws originally mandated that the U.S. president appoint the local governors, rather than providing for democratic elections by the residents themselves.²¹⁴ And all U.S. territorial residents are today still denied the right to vote in U.S. presidential elections.²¹⁵

Even with the Insular Cases in place, the Ninth Circuit has struck down local voting qualifications in Guam and the CNMI as unconstitutional.²¹⁶ The voting qualifications were designed to determine the political wishes of the colonized Chamorro and Carolinian peoples and their descendants.²¹⁷ In both Davis v. Guam and Davis v. Commonwealth Election Commission , the Ninth Circuit relied on the earlier Hawai(cid:1931)i case, Rice v. Cayetano , to determine that the voter qualifications were impermissible racial classifications in violation of the Fifteenth Amendment.²¹⁸ Rather than repurposing the Insular Cases to promote Indigenous groups’ rights, the Ninth Circuit employed the Rice framework.²¹⁹ The Ninth Circuit determined that “courts must apply the traditional constitutional analysis where Congress has specifically extended a constitutional right” to an unincorporated territory.²²⁰

Julian Aguon, who served as the lead litigator for Guam in Davis v. Guam , describes the impacts of the courts’ Davis and Rice decisions on self-determination:

It will now be even harder for colonized people to exercise any measure of self-determination (at least where an act of voting is involved) because the mere act of designating who constitutes the colonized class could collapse, in a court’s eyes, into an act of racial categorization. It will now be even more difficult to determine the collective desire of a colonized people because we cannot even name those people in order to ask them.²²¹

The Davis cases demonstrate that even the modest protection provided by the Insular Cases is tenuous and not always effectuated.²²² If H.R. 279 is one step towards a more comprehensive, stable jurisprudence that prioritizes the self-determination of the Indigenous peoples of the territories, it may forward restorative justice in this realm of self-governance. If, however, H.R. 279 stops at denouncing the Insular Cases , local territorial laws intended to further self-governance will remain at the mercy of U.S. courts’ hostile constitutional jurisprudence.

IV. Conclusion

While discussing reparations legislation and court rulings, path-breaking legal scholar Eric K. Yamamoto has contended that these measures:

do not necessarily or inevitably lead to a restructuring of governmental institutions, a changing of societal attitudes or a transformation of social relationships, and the dangers of illusory progress and co-optation are real. At the same time [they] can and should be appreciated as intensely powerful and calculated political acts that . . . bear potential for contributing to institutional and attitudinal restructuring[.]²²³

Similarly, H.R. 279’s condemnation of the Insular Cases bears the risk of making the U.S. polity feel better about the United States’ colonial relationships with its territories without sufficiently changing their power dynamics or providing adequate redress for past and present harms.²²⁴ In addition, as described in this Article and as other scholars have noted, the bill may bear the risk of exposing local laws intended to benefit the Indigenous peoples of the territories to potential constitutional invalidation and, thus, may not further restorative justice in many of the territories, especially in the realms of cultural integrity, lands and natural resources, and self-government.²²⁵

H.R. 279 can nonetheless be a meaningful symbolic step, so long as it is not the only step.²²⁶ “For many, the Cases ’ rejection would communicate at least a desire to reconstruct and build new productive political relationships.”²²⁷ It is imperative to narrate the story of the colonial and racist Insular Cases in the public eye to shift public consciousness and generate continued political movements.²²⁸ Moreover, federal case law demonstrates that the Insular Cases ’ framework, even when repurposed, is not a stable foundation for consistently accomplishing Indigenous self-determination in the territories.²²⁹ Indeed, one legal scholar recently con-tended that repurposing the Insular Cases rather than outright rejecting them will merely “entrench federal power while prolonging the subordination of territorial inhabitants.”²³⁰ Crucially, many representatives, law-yers, scholars, and advocates from the territories do support the bill, even if with reservations;²³¹ although others argue that ending the application of the Insular Cases is not the correct course of action, particularly for American Samoa.²³²

Professor Sproat’s developing contextual framework is a powerful reminder that the true test of whether H.R. 279 and related measures further restorative justice for the Indigenous peoples of the territories will be whether they further the human rights principle of self-determination, not simply equality.²³³ The United States must be receptive to the possibility that territorial self-determination may result in the restructuring of its relationships with the five territories in different ways.²³⁴ To meaningfully provide restoration for the harms of U.S. colonialism and the related Insular Cases , discourse about H.R. 279 must acknowledge the legitimate concerns raised by peoples of the U.S. territories²³⁵ and begin “a serious process and conversation about self-determination for the territories, such as a path to statehood or independence, or even a constitutional amendment[.]”²³⁶ Indeed, we must continue beyond the narrow binary framework of asking only whether or not we should reject the Insular Cases and dig into the “very real work to be done . . . of creating the conditions whereby [Indigenous peoples] can live powerfully and live well.”²³⁷