In a historic move, the U.S. Department of Justice has announced a department-wide policy to “not rely on or seek to extend the doctrine of territorial incorporation established by the Insular Cases.”
The Insular Cases are a series of early 1900s Supreme Court decisions that denied the overseas U.S. territories democracy and self-determination based on the Supreme Court’s judgment that their residents were “alien races” and “savage tribes.” The department’s action follows a recent bipartisan, bicameral 43-Member letter, as well as letters from Virgin Islands Governor Albert Bryan, civil rights groups, and others calling on the department to expressly condemn the Insular Cases and the territorial incorporation doctrine they established, according to the press release.
Carlos Felipe Uriarte, assistant attorney general for Legislative Affairs, wrote in response to these letters that “[t]he Department emphatically agrees … that the racist language and logic of the Insular Cases deserve no place in our law.” Moreover, “The Department unequivocally condemns the racist rhetoric and reasoning of the Insular Cases, and unambiguously shares your view that such reasoning and rhetoric are irreconcilable with foundational American principles of equality, justice, and democracy.” Most significantly, Uriarte explained that “[t]he Department has taken active steps to coordinate components and offices … to ensure that Department litigators . . . will not rely on the racist rhetoric and reasoning of the Insular Cases.”
“The Justice Department’s actions help clarify that it is simply unacceptable to deny people democracy or self-determination just because of where they live or who they are,” said Adi Martínez Román, co-director of Right to Democracy, an organization that works to confront and dismantle the undemocratic colonial framework in U.S. territories, the press release stated.
“We are gratified to see the department recognize that the relationship between the United States and the territories cannot lie on a foundation of racial stereotypes and discrimination,” said Neil Weare, co-director of Right to Democracy. “It’s an important first step towards a broader recognition that the United States needs to address the undemocratic framework that continues to govern people in U.S. territories.”
Statement from Members of Congress
“We are pleased with the Justice Department’s action to unequivocally reject the racist doctrine of the Insular Cases,” said House Natural Resources Committee Ranking Member Raúl M. Grijalva, who co-led last month’s congressional letter to DOJ. “This is an important step towards the Supreme Court finally overruling these discriminatory decisions, which have served to justify the denial of equal rights and self-determination to communities of color in U.S. territories for nearly 125 years.”
Virgin Islands Congresswoman Stacey Plaskett, who led a press conference last month calling on the Department to act, stated, “I am pleased that the Department of Justice has used this crucial opportunity to denounce the Insular Cases and share their emphatic agreement that the racist language and logic behind those cases deserve no place in the law of the United States. This is an important step in advancing equity for the U.S. territories. I am proud to see our efforts come to fruition – and have the Department of Justice clarify their position and denounce this racist, colonial framework. I will continue to advocate for the reversal of the Insular Cases to ensure the fair treatment of the residents of all the U.S. territories.”
“The Insular Cases—and their racist language and logic—are a stain on our country’s history. This news that the Justice Department is working to root out this rhetoric and reasoning from litigation marks progress for our democracy, its promise of equality under the law, and Democrats’ quest to bring balance to our justice system,” said U.S. Senate Majority Whip Dick Durbin (D-IL), chair of the Senate Judiciary Committee.
“Our country was founded on principles of equality and democracy, ideals that should apply equally throughout the United States, whether someone lives in a state or territory,” said House Judiciary Committee Ranking Member Jerrold Nadler (D-N.Y.).“We hope that this action by the Justice Department will encourage further action across all three branches of the federal government to address these historic and ongoing injustices.”
Statements from Civil Rights Groups and Other Allies
“We welcome the Justice Department’s momentous decision to firmly denounce the rhetoric and reasoning of the Insular Cases. Those rulings have always been at war with core values of justice and democracy,” said Adriel I. Cepeda Derieux, deputy director of the ACLU’s Voting Rights Project.
Alejandro Ortiz, senior staff attorney of the ACLU’s Racial Justice Program, added: “This has been a long time coming: the Insular Cases are firmly rooted in white supremacy. They’ve been wrong from the start, and government lawyers should never rely on their explicitly race-based logic.”
“As a national civil rights organization that defends the rights of the Latinx population and equal treatment of Puerto Ricans in the archipelago, we applaud the Justice Department’s denouncement of the Insular Cases’ reasoning as racist and indefensible,” stated Lía Fiol-Matta, senior counsel at LatinoJustice PRLDEF. “Our federal government should not rely on such shameful jurisprudence that go against basic principles of democracy, justice and the recognition of every person’s humanity.”
“The decision by the Department of Justice to cease reliance on the Insular Cases in future litigation is a monumental step towards a fair government for all Americans, regardless of where they reside. There should not be one set of constitutional rules for people who live in the mainland and another for people who live in the U.S. territories. This new policy acknowledges the inherent dignity and rights of Virgin Islanders and residents of other U.S. territories,” said Virgin Islands Governor Albert Bryan, Jr., who also wrote the department earlier this year. “We thank our congressional allies and civil rights advocates for their unwavering support and collaboration in this significant achievement. This policy change reaffirms that discriminatory practices have no place in our legal system, aligning with our nation’s core values of equality and justice for all.”
Read the full letter from DOJ HERE.
