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  • Writer's pictureThe San Juan Daily Star

Pro-statehood lawyer: Effort to repeal ‘Insular Cases’ may be misdirected

Teri Helenese, director of state and federal relations for the U.S. Virgin Islands government

By The Star Staff

A senior official from the administration of the U.S. Virgin Islands government and Resident Commissioner Jenniffer González Colón have joined a mostly Democratic group of U.S. lawmakers in launching a renewed push for the U.S. Justice Department to condemn U.S. Supreme Court rulings from a century ago that paved the way for people living in U.S. territories to essentially be treated as second-class citizens.

However, pro-statehood lawyer Gregorio Igartúa said their efforts may be misdirected because it is Congress and not the U.S. Justice Department that has the power to regulate the political relationship with the territories according to the U.S. Constitution.

“The initiative is good but it is Congress that has the power to regulate the territories and not the courts, which have usurped the powers of Congress,” Igartúa told the STAR earlier this week. “It is Congress that should approve a resolution stating that they will not validate those rulings.”

Igartúa was talking about the Insular Cases, a series of Supreme Court rulings decided from 1901 to 1905 that allowed the United States to treat residents living in the U.S. territories differently. The court devised the doctrine of “territorial incorporation,” according to which two types of territories exist: an incorporated territory, in which the U.S. Constitution fully applies, and which is destined for statehood, and an unincorporated territory, in which only “fundamental” constitutional guarantees apply and which is not bound for statehood.

Igartúa is part of a group of pro-statehood supporters lobbying Congress to declare Puerto Rico an incorporated territory. He said González Colón and Gov. Pedro Pierluisi Urrutia should launch an initiative in Congress asking lawmakers to disapprove the Insular Cases because Congress is the entity that regulates the territories.

Teri Helenese, director of state and federal relations for the U.S. Virgin Islands government, criticized the “undemocratic colonial framework” established by the Insular Cases, which deemed the “half-civilized,” “savage,” “alien races” living in Puerto Rico, Guam, and other so-called “unincorporated” U.S. territories were not entitled to the same constitutional rights and democratic participation because they were “unfit” and could not understand “Anglo-Saxon principles.”

Highlighting the national contradictions present in the Insular Cases, Helenese underscored how they directly oppose the principles of democracy, self-determination, decolonization and equality that U.S. international law commitments profess to uphold.

The Supreme Court has had several chances to overturn the Insular Cases and they have chosen not to do so, even though at least two of the justices, Sonia Sotomayor and Neil Gorsuch, have written against them.

If the cases were to be repealed, Puerto Rico would no longer be an unincorporated territory and would be an incorporated territory in transit to statehood.

As previously reported by the STAR, among the 43 lawmakers who have signed the letter to the federal Justice Department are Sen. Dick Durbin (D-Ill.), the chairman of the Senate Judiciary Committee, and Rep. Jerry Nadler (D-N.Y.), the ranking member of the House Judiciary Committee.

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