Abstract
Conservatives and liberals alike are increasingly calling for condemnation of the Insular Cases—a series of U.S. Supreme Court cases from the early 1900s, in which the Court developed the doctrine of territorial incorporation to license the United States’ indefinite holding of overseas colonial possessions. In March 2021, members of the U.S. House of Representatives introduced House Resolution 279, which declares that the Insular Cases should be rejected as having no place in U.S. constitutional law. Moreover, in 2022, Justice Gorsuch called for the Supreme Court to squarely overrule the cases.
For many, rejecting the Insular Cases is a long-overdue reckoning for U.S. colonialism. Nonetheless, some representatives and scholars from the U.S. territories have raised concerns about potential implications for existing local laws in the territories. Many of these local laws protect Indigenous territorial peoples from further colonial harms. If the proposed bill or Supreme Court’s overruling of the cases functioned to extend the U.S. Constitution in full to the territories, these laws may be found invalid under current constitutional jurisprudence.
This Article employs a contextual framework for Indigenous peoples to explore the nuanced restorative-justice implications of rejecting the Insular Cases. It emphasizes the varying perspectives of Indigenous peoples of the present-day U.S. territories, who would be most impacted by the measure. Finally, flowing from this restorative justice framework, this Article demands that any resolution to the Insular Cases forward the human rights principle of self-determination for Indigenous peoples—not mere equality.
Recommended Citation
Sarah M. Kelly,
Toward Self-Determination in the U.S. Territories: The Restorative Justice Implications of Rejecting the Insular Cases,
28
Mich. J. Race & L.
109
(2023).
Available at:
https://repository.law.umich.edu/mjrl/vol28/iss1/4