The five United States territories of Puerto Rico, American Samoa, the U.S. Virgin Islands, Guam, and the Northern Mariana Islands are home to 3.62 million people, most of whom are U.S. citizens. However, the people of these islands lack voting representatives in Congress, and are not provided with all the Constitutional protections afforded to U.S. citizens in the States. The origin of this situation is a set of decisions handed down by the U.S. Supreme Court at the turn of the twentieth century, referred to as the Insular Cases. Keep reading as we use resources on HeinOnline to learn more about this seldom-taught^[1]Aziz Rana, How We Study the Constitution: Rethinking the Insular Cases and Modern American Empire, 130 YALE L.J. F. 312 (2020-2021). This article can be found in HeinOnline’s Law Journal Library. chapter in American legal history.

Background

In the aftermath of the Spanish-American War in 1898, Spain transferred sovereignty of its colonies in Puerto Rico, Guam, and the Philippines to the United States, in accordance with Article IX of the Treaty of Paris,^[2]Treaty of Paris. 30 Stat. 1754. This treaty can be found in HeinOnline’s Session Laws Library. which ended the war. This was not the first time the United States had expanded its territory by acquiring lands from other nations. Over the course of the nineteenth century, the United States brought vast new lands under its control, both through negotiated purchases and conquest by force.

In previous instances, the United States acquired territories with the intent of eventually incorporating them into the Union as States,^[3]Juan R. Torruella, Ruling America’s Colonies: The Insular Cases, 32 YALE L. & POL’y REV. 57 (Fall 2013). This article can be found in HeinOnline’s Law Journal Library. on equal political standing with the other States of the Union. This was not the case with the territories acquired in the aftermath of the Spanish-American War. As the legal scholar Elliot Mamet argues: “Above all, the statehood process was driven by race.“^[4]Elliot Mamet, Representation on the Periphery: The Past and Future of Nonvoting Members of Congress, 10 AM. POL. THOUGHT 390 (Summer 2021). This article can be found in HeinOnline’s Law Journal Library. The newly acquired territories of Puerto Rico and the Philippines were densely-populated countries with large numbers of non-European peoples living there, the majority of whom were Catholics (another point against, in the eyes of the predominantly Protestant ruling class of the United States at the time).

From the outset, the new territories were governed under military rule. Following Spain’s surrender, Filipino rebels took up arms against American forces. Over the course of the war, American soldiers committed numerous human rights abuses against the population, civilians and combatants alike, including torture^[5]Allan W. Vestal, The First Wartime Water Torture by Americans, 69 ME. L. REV. 1 (2017). This article can be found in HeinOnline’s Law Journal Library. and the use of concentration camps. The rebellion was mostly defeated by 1902, after tens of thousands of deaths, although localized armed resistance continued until 1912. At the same time, civil unrest^[6]Conditions in Porto Rico, Doc. No. 615, 1909. This document can be found in HeinOnline’s U.S. Congressional Documents collection. in opposition to American rule continued to grow in Puerto Rico.

As the bloody war in the Philippines drew to a conclusion, the United States took steps to provide statutory legitimacy for its occupation of the former Spanish territories. The Foraker Act^[8]An Act Temporarily to provide revenues and a civil government for Porto Rico, and for other purposes., Chapter 191, 56 Congress, Public Law 56-191. 31 Stat. 77 (1900). This law can be found in HeinOnline’s Session Laws Library. established civil government and infrastructure for extracting tax revenue in Puerto Rico. The Act gave the people of Puerto Rico fewer rights than they had under the Spanish colonial regime, with the President empowered to appoint the governor and upper house of the colonial legislature, and Congress empowered to annul any laws passed by the colonial legislature.

At the same time, the United States took steps to cement its rule over the Philippines, with a series of presidential commissions^[9]Report of Taft Philippine Commission, 1901. This document can be found in HeinOnline’s Reports of U.S. Presidential Commissions. intended to legitimize American rule over the people of the islands in the midst of their uprising. As the Philippine-American War neared its conclusion, Congress passed the Philippine Organic Act of 1902, ^[10]An Act Temporarily to provide for the administration of the affairs of civil government in the Philippine Islands, and for other purposes., Public Law 57-235 / Chapter 1369, 57 Congress. 32 Stat. 691 (1902). This law can be found in … Continue reading providing for extremely limited local governance, similar to the constrained rights established for Puerto Rico in the Foraker Act.

The Insular Cases

It was legal challenges to taxation provisions of the Foraker Act that ultimately led to the litigation that would culminate in the Insular Cases before the U.S. Supreme Court. The cases created the doctrine for the United States to acquire and govern colonial territories, known as the Doctrine of Territorial Incorporation.^[11]Lisa Marie Perez, Citizenship Denied: The Insular Cases and the Fourteenth Amendment, 94 VA. L. REV. 1029 (June 2008). This article can be found in HeinOnline’s Law Journal Library. The Insular Cases—so called because they pertain to the status of islands that are not contiguous with the continental United States—were all argued and decided in rapid succession in 1901. Although there is some debate over which cases are included among their number, most scholars agree that the following cases as a body make up the Insular Cases: De Lima v. Bidwell,^[12]De Lima v. Bidwell, 182 U.S. 1, 220 (1901). This case can be found in HeinOnline’s U.S. Supreme Court Library. Goetze v. United States,^[13]Goetze v. United States/Crossman v. United States, 182 U.S. 221, 221 (1901). This case can be found in HeinOnline’s U.S. Supreme Court Library. Dooley v. United States,^[14]Dooley v. United States, 182 U.S. 222, 242 (1901). This case can be found in HeinOnline’s U.S. Supreme Court Library. Armstrong v. United States,^[15]Armstrong v. United States, 182 U.S. 243, 243 (1901). This case can be found in HeinOnline’s U.S. Supreme Court Library. Huus v. New York and Porto Rico Steamship Co.,^[16]Huus v. New York and Porto Rico Steamship Company, 182 U.S. 392, 397 (1901). This case can be found in HeinOnline’s U.S. Supreme Court Library. and Downes v. Bidwell.^[17]Downes v. Bidwell, 182 U.S. 244, 391 (1901). This case can be found in HeinOnline’s U.S. Supreme Court Library.

Of the cases, Downes v. Bidwell is arguably the most crucial case, because it hinged on the question of whether or not the U.S. Constitution applied to Puerto Rico. The answer given by the Court to this question can be summarized as: Partially. Writing for the Court in its ruling in Downes v. Bidwell,^[18]Downes v. Bidwell, 182 U.S. 244, 391 (1901). This case can be found in HeinOnline’s U.S. Supreme Court Library. Justice Henry Billings Brown asserted that it was permissible to govern the predominantly non-white people of the newly acquired territories according to different standards, and with fewer rights than those granted to American citizens born in the States: “If those possessions are inhabited by alien races, differing from us in religion, customs, laws, methods of taxation, and modes of thought, the administration of government and justice, according to Anglo-Saxon principles, may for a time be impossible.”

Many scholars^[19]Eric Schepard, The Great Dissenter’s Greatest Dissents: The First Justice Harlan, the Color-Blind Constitution and the Meaning of His Dissents in the Insular Cases for the War on Terror, 48 AM. J. LEGAL HIST. 119 (April … Continue reading have noted that the Supreme Court that handed down the decisions in the Insular Cases was the same that issued the infamous “separate but equal” ruling, which authorized racial segregation in the United States, only five years earlier in Plessy v. Ferguson.^[20]Plessy v. Ferguson, 163 U.S. 537, 563 (1896). This case can be found in HeinOnline’s U.S. Supreme Court Library. Just as Plessy in effect legalized an inferior class of citizenship for Black Americans, the Insular Cases created a different class of citizenship for the inhabitants of the United States’ new territories, the majority of whom were (and still are) people of color.

Even at the time of their decision, the cases were condemned by prominent American scholars and statesmen. In a speech^[21]Charles E. Littlefield, The Insular Cases, 24 ANNU. REP. A.B.A. 241 (1901). This article can be found in HeinOnline’s Law Journal Library. delivered to the American Bar Association in 1901, the U.S. Representative Charles E. Littlefield condemned the Court’s decisions proclaiming that “the Insular Cases, in the manner in which the results were reached, the incongruity of the results, and the variety of inconsistent views expressed by the different members of the court, are, I believe, without parallel in our judicial history.” Littlefield condemned what he viewed as a colonial system of governance, which would “govern the Republic for all time, so that although new territory may be acquired, the Republic will not expand, but will simply accumulate property.”^[22]Charles E. Littlefield, The Insular Cases, 24 ANNU. REP. A.B.A. 241 (1901). This article can be found in HeinOnline’s Law Journal Library. The scholar Sanford Levinson put it more succinctly a hundred years later, when he described the Insular Cases as “central documents in American racism.”^[23]Sanford Levinson, Why the Canon Should be Expanded to Include the Insular Cases and the Saga of American Expansionism, 17 CONST. COMMENT. 241 (Spring 2000). This article can be found in HeinOnline’s Law Journal Library.

Citizenship and Independence

The United States added to it list of territories in 1904, with the occupation of American Samoa; in 1917, with the purchase of the U.S. Virgin Islands from Denmark; and in 1986, when it formally granted territorial status to the Northern Mariana Islands, which had been occupied by American forces since the end of World War II. Following the end of World War II, the Philippines became an independent nation in 1946.^[24]Treaty between the United States of America and the Philippines and protocol respecting general relations, 61 Stat. 1174 (1946). This law can be found in HeinOnline’s Session Laws Library.

The Insular Cases remain standing case law at present, and their distinct category of citizenship applies to the inhabitants of Puerto Rico, the U.S. Virgin Islands, Guam, and the Northern Mariana Islands. The people of American Samoa have even fewer rights, being classified as U.S. nationals, not citizens. Puerto Ricans became United States citizens in 1917, with the passage of the Jones Act.^[25]An Act To provide a civil government for Porto Rico, and for other purposes., Public Law 64-368 / Chapter 145, 64 Congress. 39 Stat. 951 (1917). This law can be found in HeinOnline’s Session Laws Library. It is perhaps not accidental that Puerto Rican citizenship was granted at precisely the moment when the United States entered World War I, making all men on the island subject to conscription into the military.

American citizens born in Puerto Rico, the U.S. Virgin Island, Guam, and the Northern Mariana island retain American citizenship without constitutional protections at present, meaning that their citizenship can in theory be revoked by an act of Congress. No United States territories have voting representation in Congress.^[26]Willie Santana, The New Insular Cases, 29 WM. & MARY J. RACE GENDER & SOC. JUST. 435 (Winter 2023). This article can be found in HeinOnline’s Law Journal Library. In 2024, Puerto Ricans voted in a non-binding referendum to be admitted to the United States as the 51st state. However, incorporation in the Union as an equal State would require congressional action. Legislation on Puerto Rican statehood^[27]H.R. 1522, “Puerto Rico Statehood Admission Act”; and H.R. 2070, “Puerto Rico Self-Determination Act of 2021”: Legislative Hearing Before the Committee on Natural Resources, House of Representatives, One Hundred Seventeenth … Continue reading has been introduced in the United States Congress on a number of occasions, but has consistently failed to make it to a floor vote.

Further Research

If you’re interested in further research on the history of American colonialism, you can find the full text of all Insular Cases in HeinOnline’s HeinOnline’s U.S. Supreme Court Library. The U.S. Congressional Serial Set also features a wealth of documents that chronicle the often tumultuous relationship between the United States and its territories.