When we talk about the differences between U.S. states and territories, and when we ask why the U.S. even has territories in 2021, the answer goes back a hundred years. In the early 20th century, a series of U.S. Supreme Court decisions known today as the Insular Cases contain the answer. 

They concern the status of U.S. territories and their peoples acquired by the country during the Spanish American War. In 1898, when the U.S. signed the Treaty of Paris, effectively ending the war, the nation also acquired the remaining Spanish territories of Guam, Puerto Rico, and more. 

Until the Insular Cases were implemented, the U.S. government territories followed a straightforward path to statehood. Then-territories of Alaska, Arizona, New Mexico, and Oklahoma had full protection of the Constitution, and each became states with time. 

But with the turn of the century, the U.S. was in a position as the largest world power, and a global colonizer. 

Because of this, the federal government’s definition of what it meant to be a “territory” shifted to fit a colonial mindset, empire building, and manifest destiny. 

At the time, President William McKinley, and his predecessors Theodore Roosevelt and William Howard Taft, campaigned largely on the platform of overseas expansion. 

McKinley himself called the residents of the U.S.’s new territories “rescued peoples,” writing that it was the country’s duty to provide “law and order” to the “unorganized population whom our intervention had freed from Spain.” 

Roosevelt was no better, calling residents of these lands, “mere savages.”

Then came the series of rulings known as the Insular Cases, over the course of which, the Supreme Court held that the Constitution did not fully apply to these territories. 

It’s a product of colonialism that goes back over a century. Not just that, it is also the reinforcement used against current talks of statehood and self-determination for Puerto Rico. 

Dawnes v. Bidwell in 1901 was the first of the Insular Cases. 

The Supreme Court described Puerto Rico as “inhabited by alien races, differing from us in religion, customs, laws, methods of taxation, and modes of thought,” also adding that “the administration of government and justice, according to Anglo-Saxon principles, may for a time be impossible.”

Rep. Stacey Plaskett (D-U.S. Virgin Islands) recently wrote an op-ed on the repercussions of the Insular cases. She described how U.S. territories like her own were never sent on a path to statehood, and that residents could be denied even basic constitutional rights. 

“Which territories the Court determined were ‘unincorporated’ turned largely on the justices’ view of the people who lived there—people they labeled ‘half-civilized,’ ‘savage,’ ‘alien races,’ and ‘ignorant and lawless,’” Plasket wrote. 

The effects go beyond the ability of citizens in the territories to vote. 

Despite paying billions of dollars in federal taxes residents of U.S. territories are not eligible for Supplemental Security Income (SSI), federal programs including Medicaid, the Supplemental Nutrition Assistance Program, the child tax credit, and the Earned Income Tax Credit.

“They are either capped or denied altogether,” Plasket continued. 

After Hurricanes Irma and Maria hit the Virgin Islands and Puerto Rico in 2017, it became especially clear that the status of the U.S. territories played a factor in the slow rollout of aid. 

Nearly four years later, it's still not over. 

In recent years, multiple federal courts have questioned the legacy of the Insular cases.

In the United States v. Vaello Madero, the U.S. Court of Appeals for the First Circuit unanimously declared it unconstitutional to deny SSI benefits to U.S. citizens in Puerto Rico. The U.S. Supreme Court has taken the case up for review, with an argument set for Oct. 2021. 

In Schaller v. U.S. Social Security Administration, a federal district court judge delivered a similar ruling for residents in Guam.

In Peña Martínez v. U.S. Department of Health & Human Service, the Insular Cases were unconstitutional not just for the exclusion of Puerto Rico residents from SSI, but also their exclusion from the Supplemental Nutrition Assistance Program and Medicare Part D low-income subsidies.
 

On March 26, Rep. Raul Grijalva (D-AZ) introduced a bipartisan resolution with Rep. Gregorio Sablan (D-CNMI), Rep. Stacey Plaskett , Rep. Michael San Nicolas (D-Guam), Rep. Jenniffer González-Colon (R-PR), Rep. Nydia Velázquez (D-NY), Rep. Jesús “Chuy” García (D-Ill) and Rep. Ritchie Torres (D-NY).

The resolution rejects the Insular Cases, arguing that they rely on racist, “Plessy-era” doctrine of ‘separate but equal’ to establish the relationship between the U.S. and its territories, citing the racist language referring to people living there.

Grijalva and the Natural Resources Committee plan to host a legislative hearing in May to discuss the resolution.

His involvement in the continued deliberations of Puerto Rico’s status also doesn’t stop at the Insular Cases.

Grijalva will also preside over upcoming hearings on two opposing bills on the U.S. territory’s future, at the U.S. House of Representive’s Natural Resources Committee on April 14. 

On one hand, The Puerto Rico Statehood Admission Act seeks to turn Puerto Rico into the 51st U.S. state by holding a binding “yes” or “no” vote on the island, following a non-binding referendum that was held in Nov. 2020. 

While a small portion of the population voted, the results then were in favor of statehood. 

But on the other side, The Puerto Rico Self-Determination Act would prompt Puerto Rico’s legislature to form a Status Convention whose delegates would be elected by Puerto Rican voters — in theory a more “hands off” approach from Congress, which proponents say moves away from colonialist tendencies. 

Grijalva himself has traveled twice to Puerto Rico in the 116th Congress to survey damage after Hurricane Maria. As for why he was chosen, his committee says it’s “for dealing fairly with all sides of the status dispute.”

In Dec. 2020, he wrote to the incoming administration, urging the rapid implementation of the Biden-Harris Plan for Recovery, Renewal and Respect for Puerto Rico

In a statement March 30, Grijalva said that both bills would get a “fair hearing” and that he wouldn’t put his “thumb on the scale.”