Third-Class Citizens: Unequal Protection Within United States Territories.

• Author: Ciolli, Anthony M.

Imagine living in a community within the United States where the local government only permits people of the majority race to own land. Those who are not members of the majority race may vote in most elections, but county councils, in accordance with the customs of the majority race, elect the upper house of the bicameral legislature; furthermore, only the heads of families of the majority race--who fulfill their obligations as those customs require--may hold office. While outsiders perceive the community as welcoming and friendly, the view from within differs: The local government has enacted laws mandating preferential hiring for members of the majority race, making it more difficult for "outsiders" to enter certain licensed professions and turning a blind eye to factories staffed by hundreds of de facto slaves of minority races subject to corporal punishment. Although the Supreme Court of the United States has issued decisions holding many of these practices unconstitutional, the local government has publicly asserted that it will not follow those decisions because they are inconsistent with local culture.

The above is not a historical description of life in the Jim Crow South. Rather, it represents the current situation in American Samoa, a U.S. territory.

Judges and scholars routinely describe the people of American Samoa, the U.S. Virgin Islands, Puerto Rico, Guam, and the Northern Mariana Islands as second-class citizens within the United States. (1) At the turn of the twentieth century, the Supreme Court of the United States caused this characterization in the Insular Cases when it established them as "a sub-class of United States citizens, unequal in rights to the rest of the body politic" residing in "what amounts to a political ghetto" based on the premise that "the United States could hold territories and their inhabitants in a colonial status ad infinitum." (2) It should come as no surprise that contemporary legal scholarship portrays the territories as "systematically forgotten and mistreated" and highlights the federal government's perpetuation of economic, political, and other disparities on them. (3)

What has drawn virtually no attention, however, is the discrimination that territorial governments have perpetuated--and in some cases continue to perpetuate--against their own citizens based on gender, national origin, sexual orientation, religion, and other immutable characteristics. (4) While territorial governments and their allies frequently urge the Supreme Court of the United States to overturn the Insular Cases in high-profile cases involving their relationship with the federal government, these same territorial governments often embrace the Insular Cases in the lower federal courts and use them as a shield to prevent judicial scrutiny of local legislation or other practices. (5) In doing so, the oppressed become the oppressors and use the tools of their own oppression to establish a subclass within their own subclass--in effect, third-class citizens.

This Article attempts to fill this gap and draw attention to the territorial governments' discrimination perpetuated against women and other minority groups. The Article begins by briefly summarizing the history of federal equal protection law in territories under the common understanding of the Insular Cases and the territorial incorporation doctrine. (6) It identifies historical and modern discriminatory practices territorial governments use against women and other minorities in voting rights and other areas and observes how territorial governments embrace the Insular Cases to justify this unequal treatment. It then examines the doctrinal justification for permitting certain territorial governments to withhold fundamental rights from certain populations--that the Insular Cases should be reconceptualized to protect indigenous cultures--and illustrates that this approach, in particular the lack of any meaningful limiting principles, permits territorial governments to establish a third-class citizenry. (7) Finally, this Article concludes by proposing a new approach: Several principles that carefully balance individual rights with the need for cultural preservation to effectively preclude territorial governments from creating third-class citizens without meaningfully compromising their ability to maintain their traditional institutions and way of life. (8)

1. Equal Protection in Light of the Insular Cases

   1. Territorial Status as a Tool to Discriminate Against Women

      The Insular Cases "hover[] like a dark cloud" over virtually all aspects of the relationship between the federal government and the territories. (9) "As commonly understood," these decisions stand for the proposition that "the constitution applies 'in full' in incorporated territories, but only 'in part' in unincorporated territories like Puerto Rico," the U.S. Virgin Islands, Guam, the Northern Mariana Islands, and American Samoa. (10) "Confusion over the Insular Cases framework has led many lower courts and litigants to misapply dicta from those decisions to say only 'fundamental' protections apply in unincorporated U.S. territories unless Congress says otherwise." (11)

      It did not take territorial governments long to utilize this confusion and uncertainty to discriminate against their own people. On August 18, 1920, the states ratified the Nineteenth Amendment to the U.S. Constitution, which is often celebrated as the date "the right of women to vote was extended to all citizens of the United States." (12) History, however, belies this well-intentioned celebration. Despite the ratification of the Nineteenth Amendment, "[p]oll taxes, literacy tests, white primaries, and the threat of economic reprisals and violence kept African American women and men from vindicating their constitutional right to vote," (13) and thus "the Nineteenth Amendment left much 'unfinished business' with respect to Black women's right to vote." (14)

      But the unfinished business of women's suffrage was not limited to the Jim Crow South. Shockingly, it was two majority-minority U.S. territories--the U.S. Virgin Islands and Puerto Rico--that engaged in what was perhaps the most blatant and systematic disenfranchisement of women under the U.S. flag after the Nineteenth Amendment's ratification.

      At the time of its transfer to United States sovereignty in 1917, the U.S. Virgin Islands was 92.4% Black or mixed-race. (15) While the southern states recognized the applicability of the Nineteenth Amendment but attempted to undermine it by erecting substantial and often insurmountable practical barriers to its full implementation, the U.S. Virgin Islands did not even pay lip service to the Nineteenth Amendment--it simply continued to enforce laws prohibiting all women from voting in territorial elections. (16) The legal justification was quite simple: "[W]omen have no right to vote in the Virgin Islands of the United States" because the Insular Cases precluded application of the Nineteenth Amendment to the U.S. Virgin Islands. (17)

      Perhaps most surprising, given the history of discrimination against women and other minorities stateside, the federal government was not the source of the disenfranchisement of women Virgin Islanders. Rather, it was Virgin Islander men serving on the elected Boards of Elections--one of which was chaired by famed civil rights activist D. Hamilton Jackson--who took the position that the Nineteenth Amendment did not apply to the U.S. Virgin Islands. (18)

      These Virgin Islander men were themselves second-class citizens within the United States because they could not vote for the President of the United States and did not have voting representation in Congress. (19) Yet they chose to exercise one of the few powers they possessed--the right to vote in territorial elections and to hold elected territorial office--to strip that precious right away from Virgin Islander women, establishing them as third-class citizens with no right to vote in any election. (20) And as the legal authority for doing so, they used the same tool that served as the basis for their own second-class status: the Insular Cases. (21)

      Ultimately, the United States District Court of the Virgin Islands held that the Nineteenth Amendment did apply to the U.S. Virgin Islands and that the women of the territory were qualified to vote in territorial elections notwithstanding any territorial laws purporting otherwise. (22) It did not do so until 1936, however, more than sixteen years after the Nineteenth Amendment had been ratified and made applicable--at least nominally--in the rest of the United States. (23)

      Nevertheless, the importance of this victory was somewhat diminished. Two years later, the United States District Court of the Virgin Islands, in a decision authored by William H. Hastie--a famed civil rights leader who would become the first African American federal appellate judge and Chief Judge of the U.S. Court of Appeals for the Third Circuit--affirmed the constitutionality of a Virgin Islands statute excluding women from jury service. (24) Judge Hastie wrote that "a constitutional or statutory mandate that women shall be allowed to vote does not, in itself, make women eligible for jury service," that "[i]t still remains competent for the legislature to exclude women from jury service," and that the court "must give effect" to the "existing provision of our local law that a juror 'must be a male inhabitant.'" (25)

      The story of women's suffrage in Puerto Rico largely parallels that of the U.S. Virgin Islands, with some key differences. The people of Puerto Rico initially believed that the Nineteenth Amendment applied to their territory. (26) It was the federal government, through its Bureau of Insular Affairs, however, that held ratification of the Nineteenth Amendment did not extend suffrage to the women of Puerto Rico due to its status as an unincorporated territory. (27) Although numerous enfranchisement...