•  
  •  
 

Cardozo Law Review

Abstract

The Insular Cases—Supreme Court rulings from the early 1900s addressing the constitutional status of U.S. Territories—are facing what Justice Neil Gorsuch has called “a long overdue reckoning.” In 2022, Gorsuch declared that the Insular Cases “deserve no place in our law” because they “have no foundation in the Constitution and rest instead on racial stereotypes.” Justice Sonia Sotomayor agreed, stating that the Insular Cases “were premised on beliefs both odious and wrong.” Together, these Justices—who do not agree on much—expressed a shared “hope [that] the Court will soon recognize that the Constitution’s application should never depend on . . . the misguided framework of the Insular Cases.” Similar statements have been echoed by leaders of U.S. territories, including the Northern Mariana Islands (NMI), which is located in the western Pacific and is home to approximately 50,000 people. In 2024, forty-three members of Congress, led by Gregorio Kilili Camacho Sablan (D-NMI), James C. Moylan (R-Guam), Stacey E. Plaskett (D-VI), and Jenniffer González-Colón (R-PR), called on the U.S. Department of Justice (DOJ) to expressly condemn the Insular Cases and cease relying on them in future cases. The DOJ did just that, taking historic action to “unequivocally condemn[] the racist rhetoric and reasoning of the Insular Cases,” calling them “irreconcilable with foundational American principles of equality, justice, and democracy.” The DOJ established as formal department policy that “the racist language and logic of the Insular Cases deserve no place in our law.” Over the years, others like late NMI Governor Arnold Palacios, former Governor Juan Babauta, then-Senate President Jude Hofschneider, and former NMI House Representative Sheila Babauta have taken a stand in favor of turning the page on the Insular Cases, viewing them as something that presents a threat to NMI rights, self-governance, and self-determination. Nonetheless, there are some in the NMI who defend the Insular Cases on the view that they were or are the foundation of the NMI’s relationship with the United States, purportedly serving to protect land, culture, and self-determination by giving Congress powers to act outside of the U.S. Constitution. Addressing these people’s fears, former NMI Congressman Gregorio Kilili Sablan has cautioned, “if anyone is holding onto these racist Insular Cases as a way of keeping [land and cultural preservation laws] afloat, they may be holding onto an anchor, not a life preserver.” As the NMI marks the fiftieth anniversary of its Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America and the Insular Cases mark their 125th anniversary, it is important to critically examine the view that the Insular Cases are foundational to the Covenant and the unique provisions it established. In order for the people of the Northern Mariana Islands to chart what their next fifty years look like, it is necessary to understand what their current relationship with the United States looks like at fifty years. This Article begins with a brief explanation of the Insular Cases, what they stand for, and, just as importantly, what they do not stand for today. Then, it examines the text and history of the Covenant to demonstrate that the Insular Cases did not serve the foundational role for the Covenant that many assume; to the contrary, those who negotiated the Covenant specifically avoided grounding its provisions in the Insular Cases, instead relying on a series of compelling interests that would help protect the Covenant’s unique provisions against equal protection scrutiny. It then makes the case that former Congressman Sablan was right: that relying on the Insular Cases to protect land, culture, and self-determination in the NMI is not only unnecessary and unwise, it is actually dangerous and counterproductive to the goals of the Covenant and to the advancement of self-government and self-determination in the NMI more broadly. Finally, it examines how, over time, the United States has eroded the commitment to self-governance it made in the Covenant, raising serious questions about whether the United States is now acting in violation of international law, and whether the NMI should be placed on the United Nations List of Non-Self-Governing Territories alongside Guam, American Samoa, and other U.S. territories.

Disciplines

Law and Society | Legal History

Download

Share

COinS