New York State Bar Association Calls for Equal Treatment for People Who Live in U.S. Territories

By Susan DeSantis

November 5, 2022

New York State Bar Association Calls for Equal Treatment for People Who Live in U.S. Territories


By Susan DeSantis

The New York State Bar Association’s House of Delegates voted Saturday to approve a resolution declaring that all people who live in the United States — including residents of the U.S. Territories — be treated equally and afforded the same rights.

“Our bar association has been engaged in advocating for equal treatment for the residents of the U.S. Territories,” said Sherry Levin Wallach, president of the New York State Bar Association. “We are disappointed that the U.S. Supreme Court did not grant certiorari in Fitisemanu v. United States, which would have been a wonderful opportunity to overturn the jurisprudence that allows the people of the U.S. Territories to be treated as second-class citizens. The court’s disappointing decision misses the mark and forgoes a significant opportunity to usher in a new era that separates this nation from racist policies and attitudes.”

The cases that established second-class citizenship for the people of the U.S. Territories, known as the Insular Cases, have been relied upon by the U.S. Supreme Court and lower courts to justify unequal treatment of the residents of the territories that the United States gained in the Spanish American War and in the early 20th Century — the U.S. Virgin Islands, American Samoa, Guam, the Northern Mariana Islands and Puerto Rico.

Anthony Ciolli, a past president of the Virgin Islands Bar Association and a special assistant to the chief justice of the Virgin Islands, worked alongside the New York State Bar Association to craft the resolution, which was first approved by NYSBA’s Executive Committee on July 19.

“This is one of the biggest diversity issues of our time,” Ciolli said. “We cannot truly say that as a nation we’re committed to diversity, equity and inclusion until all the citizens of the United States are treated equally. After all, our Constitution guarantees it.”

The rulings have been challenged in multiple legal venues, and last spring the U.S. Supreme Court refused to overrule the Insular Cases and denied Jose Louis Vaello-Madero, a Puerto Rican New Yorker, his Social Security benefits when he became a resident of Puerto Rico. In his concurring opinion, Associate Justice Neil Gorsuch made it clear that he believes the court should make amends for its mistakes regarding the territories.

“A century ago in the Insular Cases, this court held that the federal government could rule Puerto Rico and other territories largely without regard to the Constitution,” Gorsuch wrote in April. “It is past time to acknowledge the gravity of this error and admit what we know to be true: The Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law.”

Associate Justice Sonia Sotomayor, who called the Insular Cases “odious and wrong,” said in the sole dissenting opinion on the case that “Congress’ decision to deny to the U. S. citizens of Puerto Rico a social safety net that it provides to almost all other U. S. citizens is especially cruel given those citizens’ dire need for aid. Puerto Rico has a disproportionately large population of seniors and people with disabilities.”

On June 1, the first day of Levin Wallach’s presidency, NYSBA launched a task force to review the laws and court decisions that have led to second-class citizenship and unequal treatment for the people who live in the U.S. territories.

At the urging of the New York State Bar Association and the Virgin Islands Bar Association, the American Bar Association on Aug. 9  approved a resolution supporting the overruling of the Insular Cases.

Experts on NYSBA’s Task Force on the U.S. Territories had hoped that the U.S. Supreme Court would grant certiorari in Fitisemanu because the Insular Cases are an affront to the Constitution and the case directly addressed the citizenship question. But on Oct. 17, the court announced it wasn’t hearing Fitisemanu, a case in which the plaintiffs argued that the people of American Samoa should have the same rights and privileges as residents of the fifty states

“Accepting the case would have given the court the chance to formally denounce the second-class citizenship for the people of all U.S. territories and take another step toward removing racism from our jurisprudence,” Levin Wallach said. “Even though the Supreme Court is not going to hear the case, we are going to continue to educate and advocate for change.”


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