HAGÅTÑA (The Guam Daily Post) — A series of U.S. Supreme Court decisions that laid the groundwork for territorial-federal relations continues to be criticized as a racist relic of America’s history.
On Wednesday, Guam Vice Speaker Tina Muna-Barnes held a public hearing on Resolution 56-36, a bipartisan measure she authored that supports a U.S. congressional effort to publicly reject the decisions known as the Insular Cases.
U.S. Rep. Raul Grijalva, a Democrat from Arizona who introduced the House resolution, testified in a prerecorded video that he views the cases as “racist, and contrary to the U.S. Constitution,” and argued they established an unequal legal and political dynamic between the United States and its territories.
“The Insular Cases belong to a very dark chapter of U.S. history when doctrines of separate and unequal, and attitudes about racial inferiority explicitly defined the country’s laws and its relationship to the territories. We cannot erase this harmful past, but as legislators, we have an obligation to make sure its legacy does not extend into the future,” Grijalva said.
He said the inequity continues today through the different applications of federal benefit programs like Supplemental Security Income and Medicaid for Guam and other U.S. island territories. The congressional resolution he authored also calls for lawyers and judges to not rely on the decisions when considering cases before them.
“The Insular Cases are a relic of the past with no modern relevance. And leaving the Insular Cases and its harmful legacy in the past opens a path towards fully realizing and affirming equal rights for Americans everywhere in the future,” he said.
The House Natural Resources Committee, which Grijalva chairs, plans to hold a hearing this month to discuss his resolution and move it forward in the congressional process.
‘Redemptive, benevolent value’
Rose Cuizon-Villazor, a vice dean at Rutgers Law School, offered her perspective as a legal scholar on the issue. A Philippine-born, former resident of the Commonwealth of the Northern Mariana Islands, she has written about the Insular Cases in publications including the California Law Review and Harvard Law Review Forum.
Cuizon-Villazor gave “qualified” support for the local and federal efforts condemning the problematic thinking behind, and legal consequences stemming from, the Insular Cases, while still acknowledging the “redemptive, benevolent value” these Supreme Court decisions brought to the territories — like her former home in the CNMI. The Commonwealth benefitted from the Insular Cases during a successful defense against a federal challenge to its local restriction on property ownership, which requires one have at least 25% Northern Marianas ancestry.
“Had the Ninth Circuit (Court of Appeals) not had the Insular Cases to rely on, it would have likely had to have used the traditional Equal Protection law to examine the validity of the restrictive land alienation law (from the CNMI),” she said. “Notably, under equal protection strict scrutiny, the law in the CNMI would likely have been struck down.”
Cuizon-Villazor advocated for a legislative solution that would protect some of the benefits granted to territories through the Insular Cases. Allowing for indigenous people from the Marianas to be designated as a federally recognized tribe would be one way to authorize special considerations like land ownership restrictions, she said.
Consequences for Guam
Former Sen. Bob Klitzkie told The Guam Daily Post previously that striking down the Insular Cases could lead to harmful changes to Guam, including the imposition of federal taxes and the end of Guam’s Section 30 money stream. Section 30 funds come from taxes paid largely by military service members stationed on Guam and are remitted directly to the local treasury.
But “irrespective” of any benefits realized through these Supreme Court decisions, “the Insular Cases stand in absolutely stark violation of the United States’ international commitments to end colonialism,” Ralph Bunche, secretary general of the Unrepresented Nations and People’s Organization testified.
Guam recently became a member of the international organization. The UNPO, which advocates for the right to self-determination, successfully made the case to U.N. representatives that the local ongoing military expansion is being conducted without the “free, prior, and informed consent” of the CHamoru people. These representatives, called “Special Rapporteurs” made these allegations to the federal government earlier this year.
The harms expressed by the UNPO and the rapporteurs are grounded, Bunche argued, “by the continuation of the doctrine that’s contained in the Insular Cases.”
“Quite frankly, the Insular Cases have no support — whether they have some ancillary benefits for some people — in a free and democratic United States today, one that claims to adhere to international law.”
In addition to Guam, the nation’s capital is also an official member of the UNPO. Both of the “shadow senators” from Washington, D.C., supported the local resolution. These nonvoting elected representatives are not sworn in to the U.S. Senate, but advocate for their constituents to the lawmaking body.
Paul Strauss, the senior U.S. shadow senator from the District of Columbia, testified that he stood in solidarity with Guam to choose its own political path moving forward, and end discrimination against American colonies.
The resolutions, “we hope,” Strauss said, “express 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.”
Guam lawmakers and other island and off-island participants attend a public hearing that discussed the Insular Cases via Zoom on April 5, 2021.
Photo by Kevin Milan/The Guam Daily Post
