William & Mary Journal of Race, Gender, and Social Justice


Willie Santana


The Insular Cases is a name given to a series of cases decided by the U.S. Supreme Court dealing with the status of the territories the United States acquired at the turn of the twentieth century. The Insular Cases rely on outmoded assumptions about the peoples who live in those islands, ninety-eight percent of whom belong to racial and ethnic minorities, and extend the extraconstitutional doctrine of territorial incorporation, a Plessy-style doctrine of separate governance for these territories that is different than the territories that preceded them. These cases, and the doctrine they announced, have been universally decried as at best “incorrectly decided” or anachronistic, and at worst “central documents in the history of American racism.” Despite the overwhelming academic and popular consensus against the Insular Cases, the Supreme Court has not only failed to overrule them but has instead unwittingly engaged in a project of establishing new Insular Cases. Establishing a list for the new Insular Cases is the purpose of this Article. Thus far, these cases are: (1) Puerto Rico v. Franklin California Tax-Free Trust, (2) Puerto Rico v. Sanchez Valle, (3) Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC, (4) Tuaua v. United States, and (5) United States v. Vaello Madero. While not all of the new Insular Cases explicitly rely on the rationale of the old, all expand upon and solidify the evil that the Insular Cases introduced into our jurisprudence: permanent American colonialism.

This abstract has been adapted from the author's introduction.