New York State Bar Association Disappointed by Department of Justice’s Position on Equal Rights for Residents of the U.S. Territories

New York State Bar Association Disappointed by Department of Justice’s Position on Equal Rights for Residents of the U.S. Territories

8.30.2022

By Susan DeSantis

Sherry Levin Wallach, president of the New York State Bar Association, issued the following statement about the Department of Justice’s response to plaintiff John Fitisemanu, a resident of American Samoa, who sued the federal government over its denial of citizenship to those born in the U.S. territory:

“The New York State Bar Association is disappointed that the Department of Justice’s brief in Fitisemanu v. United States did not take the position that the Insular Cases – racist Supreme Court decisions denying birthright citizenship to the residents of the U.S. territories – be overturned. These cases have stood for more than a century and are the basis for treating an estimated 3.5 million residents who live in the U.S. territories as second-class citizens.”

Levin Wallach has appointed a task force whose work includes addressing the issues created by the Insular Cases and the Territorial Clause of the United States Constitution.

Here is the text of the letter that Levin Wallach sent to Attorney General Merrick Garland on Aug. 22:

As our country continues to struggle with centuries of institutional, systemic, and societal racism, the US Supreme Court has the opportunity to decide to hear a case that could right a wrong that has plagued the United States for over one hundred years.

On behalf of the New York State Bar Association, I urge the Department of Justice to take a position on the Insular Cases when it files its response to petitioners in Fitisemanu v. United States.  The Fitisemanu case asks whether individuals who were born in the territories are entitled to birthright citizenship under the Citizenship Clause of the 14th Amendment. This case expressly asks the Supreme Court to answer “whether the Insular Cases should be overruled.”

The Insular Cases initially addressed the status of those living in countries acquired by the United States after the Spanish-American War, determining that they were not worthy of equal treatment because they were members of so-called “savage tribes” and “alien races.” Though they have been widely criticized and are clearly racist, the Insular Cases still stand and have served as the basis for court decisions that continue to mistreat residents of the territories and deny them rights. They are a glaring example of how a significant portion of our population is discriminated against based on race and ethnicity, improperly overlooked, and disenfranchised.

The Insular Cases affirm a second-class status for a population based on race and ethnicity.  Two sitting Justices have already expressed their abhorrence of the underlying racism enshrined in the current law. Justice Sonia Sotomayor recently called the Insular Cases “both odious and wrong” and Justice Neil Gorsuch stated that they “rest on a rotten foundation.” They both agree it is time to finally overrule the Insular Cases.

As president of the New York State Bar Association, I proudly represent the largest voluntary state bar association in the nation. We have advocated since 1876 to promote equal access to justice for all. The prejudicial practices endorsed by the Insular Cases are an anathema to the rule of law that our Association, and our nation, hold dear. The Insular cases and the colonial framework they established are simply un-American and cannot be squared with core values of racial justice and equity. We respectfully urge the Justice Department to support efforts to overrule the Insular Cases.