Fitisemanu, the Insular Cases, and Territorial Autonomy

By: Emily Evans

The Insular Cases are a longstanding series of cases from the early 20th century concerning the status of U.S. territories and their inhabitants. These cases introduced the doctrine of territorial non-incorporation, which justified the ownership of the United States over acquired foreign territories without incorporating these territories and denying inhabitants their rights and equal protection under the law as U.S. citizens.[1] Objectively, these cases were based on social Darwinist ideologies about the people indigenous to these territories, as they practiced vastly different cultures and were primarily non-white. The precedent set in these cases has allowed the United States to justify its 20th-century imperialism while perpetuating racist falsehoods about the non-white populations living in these unincorporated territories.[2] It also permits the government to actively deny certain benefits to their inhabitants who have second-class status as U.S. citizens or do not have citizenship at all.[3]

Though the Supreme Court decided these cases over a century ago, their salience was relatively low, with only a few notable exceptions until recent years. The 2021 case Fitisemanu v. United States included three natural born citizens of American Samoa who petitioned the United States District Court for the District of Utah. They asserted they had birthright citizenship because American Samoa is “in the United States” and “subject to the jurisdiction thereof.”[4] They argued that denying this right was unconstitutional under the Citizenship Clause outlined in the Fourteenth Amendment, a right freely given to other territorial inhabitants under U.S. sovereignty.[5] The petition, which included a prompt to overrule the Insular Cases, made its way to the Supreme Court before its writ of certiorari was ultimately denied, despite the disdain that several justices, such as Justice Gorsuch, have shown for the Insular Cases and their precedent.

The denial to grant cert to hear Fitisemanu creates a unique conflict for the Supreme Court and its future priorities. There are sitting members of the Court who address and reverse the Insular Cases and the racist ideologies that underpin them because they are incompatible with the ideals of equality that the United States is supposed to represent.[6] Many legal and historical scholars, like the late Juan Torruella, Bartholomew Sparrow, and Sam Erman, also agree that the decisions and their reasoning are opprobrium and must be addressed. Despite the pressure that interest groups like the ACLU, legal and historical scholars, the legal community, and political figures put on the U.S. Supreme Court to hear and overrule the precedent, even the sympathetic justices denied the writ.[7] They did so because the American Samoa government filed an amicus brief stating that the territory had no majority of its inhabitants who desired U.S. citizenship. To both hear Fitisemanu and side in favor of the three petitioners would disrupt their cultural and political autonomy.[8]

The Supreme Court wants to overrule the Insular Cases but also wants to respect the sovereignty of the territories it holds, even for those whose inhabitants have U.S. citizenship but are limited in their Constitutional protections. In United States v. Vaello-Madero, Gorsuch noted that one of the primary reasons he and several others sided with the majority was because there was no question regarding overturning the Insular Cases. If there was, then the “rotten foundation” would be removed.[9] The precedent created by the Insular Cases relies on harmful racial stereotypes and withholds valuable Constitutional protections and guarantees from incorporated and unincorporated territories. That is a powerful incentive to move away from these decisions.[10] However, the governments of the U.S. territories have actively lobbied against the incorporation of their territory; in the case of Fitisemanu, they have petitioned not to be granted birthright citizenship. To exacerbate this unique challenge, many are now framing the Insular Cases as a way to protect and insulate the traditional cultures of U.S. territories. However, there is serious debate about the validity of this perspective, as Justice Gorsuch points out in his dissent.[11]

Essentially, the Supreme Court is at a difficult crossroads. It can either condemn the Insular Cases without addressing the precedent or overturn the decisions but risk the autonomy that U.S. territories have carefully crafted in their decades as second-class states. Given the increasing number of cases that handle the incorporation doctrine and the Insular Cases precedent, it is likely that the Supreme Court will have more chances to address this critical issue, though whether they decide to hear it will depend on several factors.

My suggestion is that if the Supreme Court had another opportunity to address the Insular Cases, it should deny the case on the basis of the political questions doctrine while condemning the racist precedent in their opinion. That would allow the justices to unofficially overturn the precedent without taking the autonomy of the territory’s citizens to make their own decision regarding their sovereignty. Given Congress’s recent attempt to address the political status of Puerto Rico with H.R.8393, the Puerto Rico Status Act, it is feasible for the Supreme Court to declare that they condemn the Insular Cases precedent. But it could also say that it falls under Congress’s authority to properly determine the status of unincorporated territories, lest the justices’ decision unintentionally act against the will of the territory’s citizens.[12] An opinion like this would restore autonomy to the citizens of the affected territories while turning the Supreme Court’s and the nation’s back on the odious precedent set by the Insular Cases.


[2] Juan Torruella, Ruling American’s Colonies: The “Insular Cases,” 32 YALE L. & POL’Y REV. 57 (2013).


[4] Fitisemanu v. United States, 20 F.4th 1325 (10th Cir. 2021).

[5] Id.

[6] United States v. Vaello-Madero, 142 S. Ct. 1539 (2022).

[7] Jess Zalph & Nina Totenberg, Supreme Court Declines To Consider Challenge To Racist Citizenship Laws, NPR (Dec. 6, 2022, 6:57 PM),

[8] Fitisemanu, 20 F.4th.

[9] Vaello-Madero, 142 S. Ct. at 33.


[11] Vaello-Madero, 142 S. Ct. at 32.

[12] Puerto Rico Status Act, H.R. 8393, 117th Cong. (2022).