Amicus Curiae Brief — John Fitisemanu, et al., Petitioners v. United States, et al.

No. 21-1394

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In the

Supreme Court of the United States

---------------------------------♦--------------------------------JOHN FITISEMANU, et al.,

Petitioners,

vs.

UNITED STATES OF AMERICA, et al.,

Respondents.

---------------------------------♦--------------------------------On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

---------------------------------♦--------------------------------BRIEF FOR AMICI CURIAE

NORTHERN MARIANAS DESCENT CORPORATION

AND UNITED CAROLINIANS ASSOCIATION

IN SUPPORT OF RESPONDENTS

---------------------------------♦--------------------------------JOSEPH E. HOREY

BANES HOREY BERMAN & MILLER, LLC

200 Marianas Business Plaza, Susupe, Saipan

Commonwealth of the Northern Mariana Islands

PO Box 501969, Saipan MP 96950

Telephone: (670) 234-5684

Fax: (670) 234-5683

E-mail: jhorey@pacificlawyers.law

Counsel of Record for Amici Curiae

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

ii

INTEREST OF AMICI CURIAE .........................

1

SUMMARY OF ARGUMENT ..............................

1

ARGUMENT ........................................................

2

A.

The Northern Marianas’ Reliance on the

Insular Cases Urges Stare Decisis ............

2

B. The Insular Cases Were Soundly Decided .....

8

1. The Rule of the Insular Cases Is Not

Racist ...................................................

8

2. The Insular Cases Correctly Link Federal Powers to the Law of Nations ...... 12

CONCLUSION..................................................... 17

ii

TABLE OF AUTHORITIES

Page

CASES

INSULAR CASES

Downes v. Bidwell, 182 U.S. 244 (1901) ............. passim

Hawaii v. Mankichi, 190 U.S. 197 (1903) ................. 2, 8

Dorr v. United States, 195 U.S. 138 (1904) ........... 2, 8, 9

Rassmussen v. United States, 197 U.S. 516 (1905) .........2

Balzac v. Porto Rico, 258 U.S. 298 (1922) ................. 2, 5

NORTHERN MARIANAS INSULAR CASES

Northern Mariana Islands v. Atalig, 723 F.2d

682 (9th Cir. 1984)......................................... 5, 11, 12

Wabol v. Villacrusis, 958 F.2d 1450 (9th Cir.

1990) .............................................................. 5, 12, 16

Rayphand v. Sablan, 95 F.Supp.2d 1133

(D.N.M.I. 1999), aff ’d sub nom. Torres v.

Sablan, 528 U.S. 1110 (2000) .............................. 5, 16

OTHER CASES

Boumediene v. Bush, 553 U.S. 723 (2008) ....................2

Chicago, Burlington & Quincy R. Co. v. City of

Chicago, 166 U.S. 226 (1897) ..................................10

Duncan v. Louisiana, 391 U.S. 145 (1968) .................11

Davis v. Commonwealth Election Commission,

844 F.3d 1087 (9th Cir. 2016) ....................................7

iii

TABLE OF AUTHORITIES – Continued

Page

Fitisemanu v. United States, 1 F.4th 862 (10th

Cir. 2021) ........................................................... 15, 16

Fong Yue Ting v. United States, 149 U.S. 698

(1893) .......................................................................12

Geofroy v. Riggs, 133 U.S. 258 (1890) .........................13

Holden v. Hardy, 169 U.S. 366 (1898) .................. 10, 11

Hurtado v. California, 110 U.S. 516 (1884) .......... 10, 11

McDonald v. City of Chicago, 561 U.S. 742

(2010).................................................................... 12

Payne v. Tennessee, 501 U.S. 808 (1991) .......................3

Powell v. Alabama, 287 U.S. 45 (1932) .......................11

Radich v. Deleon Guerrero, 2016 WL 1212437

(D.N.M.I. 2016) ..........................................................7

Ramos v. Louisiana, 590 U.S. ___, 140 S. Ct.

1390 (2020) ................................................................8

Reid v. Covert, 354 U.S. 1 (1957) ............................ 2, 16

Reynolds v. Sims, 377 U.S. 533 (1964)..........................4

The Nereide, 13 U.S. (9 Cranch) 388 (1815) ...............13

Twining v. New Jersey, 211 U.S. 78 (1908) .................10

United States v. Curtiss-Wright Export Corp.,

299 U.S. 304 (1936) .................................................12

United States v. Vaello Madero, ___ U.S. ___, 142

S.Ct. 1539 (2022) .......................................................8

iv

TABLE OF AUTHORITIES – Continued

Page

United States v. Verdugo-Urquidez, 494 U.S. 259

(1990) .........................................................................2

Usoyan v. Republic of Turkey, 6 F.4th 31 (D.C.

Cir. 2021) .................................................................13

US-NMI COVENANT

Covenant to a Establish a Commonwealth of

the Northern Mariana Islands in Political

Union with the United States of America,

approved by and reprinted in U.S. Pub. L.

94–241 (March 24, 1976), 90 Stat. 263 ................. 3, 4

Section 105 ....................................................................4

Section 203 ....................................................................4

Section 501 ................................................................ 3, 4

Section 805 ....................................................................4

Marianas Political Status Commission, Section

by Section Analysis of the Covenant to Establish a Commonwealth of the Northern Mariana Islands (1975) ............................................ 4, 5, 6

NMI CONSTITUTION

Art. I, § 12 .....................................................................7

INTERNATIONAL LAW

U.N. CHARTER, Art. 73 .................................................14

v

TABLE OF AUTHORITIES – Continued

Page

UNITED NATIONS GENERAL ASSEMBLY RESOLUTIONS

G.A. Res. 567 (1952), A/RES/567(VI) ..........................15

G.A. Res. 648 (1952), A/RES/648(VII) ........................15

G.A. Res. 742 (1953), A/RES/742(VIII) .......................15

G.A. Res. 1514 (1960), A/RES/1514(XV) (Declaration on the Granting of Independence to Colonial Countries and Peoples) .................................14

G.A. Res. 1541 (1960), A/RES/1541(XV).....................15

G.A. Res. 2200 (1966), A/RES/2200(XXI)A (International Covenant on Civil and Political

Rights) .....................................................................14

G.A. Res. 2621 (1970), A/RES/2621(XXV) (Programme of Action) ...................................................14

ARTICLES

Joseph E. Horey, The Right of Self-Government

in the Commonwealth of the Northern Mariana Islands, 4 ASIAN-PAC. L. & POL’Y J. 180

(2003) .......................................................................17

Paul M. Leary, The Northern Marianas Covenant and American Territorial Relations, Inst.

of Governmental Studies Research Report

(Berkeley, 1980) .........................................................7

Howard P. Willens & Deanne C. Siemer, The

Constitution of the Northern Mariana Islands:

Constitutional Principles and Innovations in

a Pacific Setting, 65 GEO. L.J. 1373 (1977) ........... 4, 5

vi

TABLE OF AUTHORITIES – Continued

Page

OTHER

17A AM. JUR. 2d Contracts § 218 .................................6

1

INTEREST OF AMICI CURIAE1

Amici Curiae Northern Marianas Descent Corporation and United Carolinians Association are nongovernmental organizations dedicated to the protection and advancement of the interests of the indigenous peoples of the Northern Mariana Islands, with a

particular focus, in the case of Amicus UCA, on advancing the economic, educational, cultural and overall

well-being of the Carolinian people. Both amici are

dedicated to protecting the existing restriction on acquisition of land in the Northern Mariana Islands to

persons of Northern Marianas descent, a restriction

that has been upheld on the authority of the Insular

Cases.

---------------------------------♦---------------------------------

SUMMARY OF ARGUMENT

The petition seeks the overturning of the Insular

Cases – a series of decisions by this Court holding

that the United States, when acting outside its incorporated territory, holds all the powers belonging to a

nation under international law, subject only to express

constitutional prohibitions, and to such inherent

1

Written consent to the filing of this amicus brief has been

provided by counsel of record for each party. The parties received

timely notice of this filing.

No counsel for any party authored this brief in whole or in

part. No party, counsel for any party, or any other person, other

than the amici curiae or their counsel, made any monetary contribution intended to fund the preparation or submission of this

brief.

2

constitutional limitations as are essential to all free

government.2

Because of the reliance placed on them, especially

in the Northern Mariana Islands, and because they

were correctly decided, the Insular Cases should not be

disturbed, and the writ of certiorari should be denied.

---------------------------------♦---------------------------------

ARGUMENT

A. The Northern Marianas’ Reliance on the Insular Cases Urges Stare Decisis.

The principle of stare decisis counsels against revisiting or overturning longstanding precedent, and

the Insular Cases have been standing for a very long

time – half as long as the Constitution itself. They were

controversial within the Court when first decided, but

three of the dissenters from the first two Insular Cases

concurred in the third on stare decisis grounds, in 1904.

See Dorr, supra, 195 U.S. at 153 (Peckham, J., concurring). By the time of the last, in 1922, the Insular rule

was described as “the settled law of the court.” Balzac,

supra, 258 U.S. at 305. The Cases weathered another

stern test in Reid v. Covert, 354 U.S. 1 (1957), but they

survived it, and were reaffirmed and applied as recently as United States v. Verdugo-Urquidez, 494 U.S.

259, 268-69 (1990), and Boumediene v. Bush, 553 U.S.

2

The principal Insular Cases are: Downes v. Bidwell, 182 U.S.

244 (1901); Hawaii v. Mankichi, 190 U.S. 197 (1903); Dorr v.

United States, 195 U.S. 138 (1904); Rassmussen v. United States,

197 U.S. 516 (1905); Balzac v. Porto Rico, 258 U.S. 298 (1922).

3

723, 759 (2008). If any cases are entitled to the benefit

of the doubt that stare decisis provides, it is the Insular

Cases.

Amici urge the Court to apply stare decisis in this

case, however, not so much for the age and durability

of the Cases as for the reliance that has been placed

on them by the people of the Commonwealth of the

Northern Mariana Islands (CNMI), especially the indigenous people, whose interests Amici exist to protect.

Reliance is one major recognized reason for stare decisis, see, e.g., Payne v. Tennessee, 501 U.S. 808, 828 (1991)

(“Considerations in favor of stare decisis are at their

acme in cases . . . where reliance interests are involved[.]”), and the CNMI was established, its indigenous lands protected, and that protection upheld in

reliance on the Insular Cases.

The CNMI was established pursuant to a mutually binding constitutional agreement between the

Northern Marianas people and the United States,

known as the Covenant.3 The Covenant creates a bilateral political union between the United States and the

CNMI, and it sets out certain conditions which shall

prevail in the CNMI notwithstanding any conflict with

the US Constitution. See COVENANT § 501(b). One of

these is that neither grand nor petit jury shall be required for trial by local law. See id. § 501(a). Another is

that each of the three principal islands of the CNMI

3

See Covenant to a Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of

America, approved by and reprinted in U.S. Pub. L. 94–241

(March 24, 1976), 90 Stat. 263 (hereinafter COVENANT).

4

(Saipan, Tinian and Rota) shall have equal representation in one house of the CNMI legislature, regardless

of differences in population. See id. § 203(c). A third –

the condition of chief concern to Amici – is that the

acquisition of long-term interests in real property in

the CNMI shall be restricted to persons of Northern

Marianas descent. See id. § 805(a).

Each of these conditions likely conflicts with one

or more provisions of the United States Constitution.4

Yet they are explicitly recognized in the Covenant as

“fundamental” provisions, to which no change is permissible without the agreement of both the United

States and the CNMI. See id. § 105. Indeed, they were

“integral” matters of sufficient importance that the

Covenant could not have been adopted without them.5

4

The jury trial provision conflicts with the plain text of the

fifth, sixth and seventh amendments, and the apportionment

provision with the “one man, one vote” equal protection rule

exemplified by Reynolds v. Sims, 377 U.S. 533 (1964). The land

alienation provision conflicts with the equal protection clause, the

privileges and immunities clauses, and possibly the takings

clause, the commerce clause, and others. See Howard P. Willens

& Deanne C. Siemer, The Constitution of the Northern Mariana

Islands: Constitutional Principles and Innovations in a Pacific

Setting, 65 GEO. L.J. 1373, 1392-93 (1977).

5

See generally Marianas Political Status Commission, Section by Section Analysis of the Covenant to Establish a Commonwealth of the Northern Mariana Islands (1975) at 44 (“The parties

negotiating the Covenant believe the provisions of the Covenant

referred to in Subsection [501](b) constitute integral parts of the

actual compromises and concessions without which the accessions

of the Northern Mariana Islands to the United States would not

have been possible.”). See also, e.g., Willens & Siemer, 65 GEO.

L.J. at 1398 (“Rota and Tinian were unwilling to accede to a permanent political union with Saipan without adequate protection

5

All have been challenged on constitutional grounds,

but all have been upheld.6 And they have been upheld

on the specific authority of the Insular Cases.7

The overruling of those cases would therefore endanger key Covenant provisions on which the CNMI’s

existence rests. In particular, it would endanger the

land alienation restriction, which enables the people of

the Northern Marianas “to retain the ownership of

their most precious asset: their land.” Section by Section Analysis at 116.

of their separate interests in at least one house of the legislature.”); Wabol v. Villacrusis, 958 F.2d 1450, 1461 (9th Cir. 1990)

(“The legislative history of the Covenant and the Constitution indicate that the political union of the Commonwealth and the

United States could not have been accomplished without the [land

alienation] restrictions.”).

6

See Northern Mariana Islands v. Atalig, 723 F.2d 682 (9th

Cir. 1984) (upholding jury exemption); Wabol, 958 F.2d 1450 (upholding land alienation exemption); Rayphand v. Sablan, 95

F.Supp.2d 1133 (D.N.M.I. 1999), aff ’d sub nom. Torres v. Sablan,

528 U.S. 1110 (2000) (upholding legislative apportionment exemption).

7

See Atalig, 723 F.2d at 688-90 (following Insular Case

framework in analyzing and upholding jury trial exemption);

Wabol, 958 F.2d at 1459 (applying Insular Case approach to issue

of land rights) (citing Atalig and Balzac); Rayphand, 95

F.Supp.2d at 1139 fn. 11 (“[W]e focus on the central test of Atalig,

Wabol, and the Insular Cases[.]”). Atalig noted that, in the legislative history of its approval of the Covenant, “Congress specifically noted the Insular Cases.” 723 F.2d at 688 fn. 17. See also

Willens & Siemer, 65 GEO. L.J. at 1393-1412 (article by NMI

counsel in Covenant negotiations, describing and applying the Insular Cases as the legal standards for evaluating the Covenant’s

constitutional exemptions).

6

This Section expressly recognizes the importance of the ownership of land for the culture and traditions of the people of the

Northern Mariana Islands and the desirability of protecting them against exploitation

and promoting their economic advancement

and self-sufficiency.

Id. The constitutionality of this provision would certainly be challenged again once the Insular Cases were

no longer there to guard it. It might survive under

strict scrutiny, or some other applicable test of constitutionality, or it might not. The same is true of the legislative apportionment exemption.

If either of these did not survive, that would not

mean that the NMI people would simply lose their land

rights, or their senate, but that all else would carry on

as before – although that would be bad enough. On

the contrary, if the United States is found to have

lacked the constitutional power to approve any one of

the Covenant’s “fundamental,” “integral” provisions,

that would likely mean that it had no power to enter

into the Covenant at all, and that the entire agreement

was a void act.8 The existing US-CNMI political union

– sovereignty, citizenship and all – would evaporate

overnight, and a new relationship between the US and

the Northern Marianas would need to be constructed

8

See generally, e.g., 17A AM. JUR. 2d Contracts § 218 (“An

illegal consideration causes the whole promise to fail, and the contract is void. In other words, a contract that rests on illegal consideration is itself illegal.”) (footnotes omitted).

7

from scratch.9 Perhaps no relationship agreeable to

both sides could be constructed now at all, particularly

if the NMI people are now to be told, “You can have

your land, or you can have your citizenship, but not

both.” To reopen the Insular Cases, in other words, is

to invite a constitutional crisis of existential proportions in the CNMI. It is to gamble using the islands of

the CNMI as dice.10

9

See, e.g., Paul M. Leary, The Northern Marianas Covenant

and American Territorial Relations, Inst. of Governmental Studies Research Report 80-1 (Berkeley, 1980) (“If the federal courts

hold that the principle of population alone must apply to the

apportionment of the Northern Marianas legislature . . . then

the entire Northern Marianas agreement will be thrown into disarray. If one of its fundamental parts is invalid, then the very basis for the compact is imperiled.”).

10

Even if the existing exemptions somehow survived, the

door would be closed to any future agreement between the United

States and the CNMI establishing any additional constitutional

exemptions, even if both parties agreed to them. The desirability

of such further exemptions has become clear over time. For example, a longstanding CNMI statutory handgun ban was recently

struck down as violating the second amendment. See Radich v.

Deleon Guerrero, 2016 WL 1212437 (D.N.M.I. 2016). A provision

of the CNMI constitution limiting voting rights on local land matters was similarly struck down as violating the fifteenth. See Davis v. Commonwealth Election Commission, 844 F.3d 1087 (9th

Cir. 2016). Another constitutional provision regarding abortion

was long in danger of such a challenge. See N.M.I. CONST., Art. I,

§ 12 (“The abortion of the unborn child during the mother’s pregnancy is prohibited in the Commonwealth of the Northern Mariana Islands, except as provided by law.”). As the law currently

stands, the Covenant could be amended, by mutual agreement, to

create constitutional exemptions covering such issues. However,

such an agreement would likely be impossible without the Insular

Cases.

8

The reliance interest therefore counsels leaving

them alone, “even if we question their soundness[.]”

Ramos v. Louisiana, 590 U.S. ___, 140 S. Ct. 1390, 1408

(2020) (Sotomayor, J., concurring).

B. The Insular Cases Were Soundly Decided

That said, there is no reason to question their

soundness. The Insular Cases were correctly decided.

1. The Rule of the Insular Cases Is Not Racist.

In making this point, a word must first be said

about the most controversial aspect of the Cases,

namely their supposed racism.11 There is no doubt

that the Insular Cases contain much arrogant language about hypothetical peoples in far-flung lands,12

and that they were put to the immediate service of

an imperialist political agenda.13 However, their

11

See Petition at 27 (“[T]he reasoning in the decisions rests

on indefensible racial animus.”). See also, e.g., United States v.

Vaello Madero, ___ U.S. ___, 142 S.Ct. 1539, 1552 (2022) (Gorsuch, J., concurring) (“The Insular Cases . . . rest . . . on racial stereotypes.”); id. at 1560 fn. 4 (Sotomayor, J., dissenting) (“[The

Insular Cases] were premised on beliefs both odious and wrong.”).

12

See, e.g., Downes, 182 U.S. at 306 (“an unknown island,

peopled with an uncivilized race”); id. (“the immediate bestowal

of citizenship on those absolutely unfit to receive it”); id. at 311

(“an island inhabited with people utterly unfit for American citizenship”) (White, J.); Dorr, 195 U.S. at 148 (“territory peopled by

savages”).

13

See, e.g., Downes, 182 U.S. at 286 (Brown, J.) (“A false step

at this time might be fatal to the development of what Chief Justice Marshall called the American Empire.”). Cf. Mankichi, 190

9

fundamental insight – that the same federal constitutional rules need not, and ought not, be imposed on all

people in all places – is not in any sense racist.

The Insular Cases first express this principle, as

one might expect, with reference to “territory peopled

by savages,”14 but in the very next breath they make

the same point about civilized peoples with their own

long-established legal traditions.15 Indeed, it is often

forgotten that the same limitation that the Insular

Cases imposed on the reach of the federal constitution

beyond the states – i.e., that it protects only those

rights fundamental to all free government16 – also

U.S. at 240 (Harlan, J., dissenting) (“[I]f the principles now announced should become firmly established, the time may not be

far distant when . . . to gratify an ambition to become the dominant political power in all the earth, the United States will acquire territories in every direction. . . .”).

14

See, e.g., Dorr, 195 U.S. at 148 (“If the United States . . .

shall acquire territory peopled by savages, [then] if this doctrine

is sound, it must establish there the trial by jury. To state such a

proposition demonstrates the impossibility of carrying it into

practice.”).

15

See id. (“Again, if the United States shall acquire by treaty

the cession of territory having an established system of jurisprudence, where jury trials are unknown, but a method of fair and

orderly trial prevails under an acceptable and long-established

code, the preference of the people must be disregarded, their established customs ignored, and they themselves coerced to accept,

in advance of incorporation into the United States, a system of

trial unknown to them and unsuited to their needs.”).

16

See, e.g., Downes, 182 U.S. at 282-83 (“such . . . immunities

as are indispensable to a free government”) (Brown, J.), id. at 291

(“principles which are the basis of all free government which cannot be with impunity transcended”) (White, J.).

10

originally applied to the people of the states themselves. At the time the Insular Cases were decided,

that was the measure of the federal constitutional

rights applicable to the states through the fourteenth

amendment due process clause.17 Moreover, the rationale for this limited federal constitutional safety net

was explicitly an openness to accommodating the

states’ own local cultural diversity:

The Constitution of the United States was ordained, it is true, by descendants of Englishmen, who inherited the traditions of English

law and history; but it was made for an undefined and expanding future, and for a people

gathered and to be gathered from many nations, and of many tongues. And, while we

take just pride in the principles and institutions of common law, we are not to forget that,

in lands where other systems of jurisprudence

prevail, the ideas and processes of civil justice

are also not unknown. . . . There is nothing in

Magna Charta, rightly construed as a broad

17

See, e.g., Twining v. New Jersey, 211 U.S. 78, 106 (1908)

(“a fundamental principle of liberty and justice which inheres in

the very idea of a free government and is the inalienable right of

a citizen of such a government”) (in New Jersey) (overruled by

Malloy v. Hogan, 378 U.S. 1 (1964)); Holden v. Hardy, 169 U.S.

366, 389 (1898) (“certain immutable principles of justice, which

inhere in the very idea of a free government”) (in Utah); Chicago,

Burlington & Quincy R. Co. v. City of Chicago, 166 U.S. 226, 237

(1897) (“limitations on [governmental] power, which grow out of

the essential nature of all free governments”) (in Illinois); Hurtado v. California, 110 U.S. 516, 521 (1884) (“the general principles of public liberty and private right, which lie at the foundation

of all free government”) (in California).

11

charter of public right and law, which ought to

exclude the best ideas of all systems and every

age[.]

Hurtado, 110 U.S. at 530-31.

In other words, the limited federal constitution of

the Insular Cases was not just something concocted in

order to be foisted onto “alien races” on distant islands,

“differing from us in religion, customs . . . and modes

of thought.” Downes, 182 U.S. at 287 (Brown, J.). On

the contrary, it reflects a prescient recognition that

“we,” the American people, can and will often differ

from each other in all these ways as well, and that we

will require some constitutional room in which to do so.

And the wider the scope of us becomes, the truer this

is.

The people of the states, however, no longer enjoy

this degree of constitutional flexibility. The old “free

government” rule still prevailed as late as Powell v.

Alabama, 287 U.S. 45, 71-72 (1932) (“certain immutable principles of justice, which inhere in the very idea

of a free government, which no member of the Union

may disregard”) (quoting Holden, 169 U.S. at 389), but,

under a series of “incorporation” decisions culminating

with Duncan v. Louisiana, 391 U.S. 145 (1968), the

states are now bound by all federal constitutional

principles that are deemed fundamental, not to all

free government, but to “an Anglo-American regime”

specifically.18 That, if anything, is the “racist” rule. It is

18

Duncan describes the shift in perspective at 391 U.S. at

149 fn.14. See also Atalig, 723 F.2d at 689 (“Duncan . . . adopt[ed]

12

thanks to the Insular Cases that the older, more broadminded, rule still prevails outside the states.19

2. The Insular Cases Correctly Link Federal

Powers to the Law of Nations.

All questions of racism aside, the Insular Cases

are constitutionally sound. The foundational principle

of their analysis – that the constitution creates a nation within the meaning of international law, which is

governed by that law when it acts as a nation on the

international stage – has been widely accepted by this

Court in other contexts, including the law of treaties

and that of immigration.20 In the case of treaties, the

rule is stated in very Insular-like terms as follows:

a new definition of fundamental rights for the purpose of applying

the Bill of Rights to the states. Previously, the inquiry had been

whether a civilized system could be imagined that would not accord the particular protection. The new approach only asks

whether a procedure is necessary to an Anglo-American regime of

ordered liberty.”) (internal quotation marks omitted) (emphasis

by Atalig court). See generally McDonald v. City of Chicago, 561

U.S. 742, 759-66 (2010) (discussing this development).

19

See Wabol, 958 F.2d at 1460 (“In the territorial context, the

definition of a basic and integral freedom must narrow to incorporate the shared beliefs of diverse cultures.”).

20

See, e.g., United States v. Curtiss-Wright Export Corp., 299

U.S. 304, 318 (1936) (“As a member of the family of nations, the

right and power of the United States in that field [of international

relations] are equal to the right and power of the other members

of the international family.”); Fong Yue Ting v. United States, 149

U.S. 698, 705 (1893) (“The United States, in their relation to foreign countries and their subjects or citizens, are one nation, invested with powers which belong to independent nations[.]”)

(quoting Chae Chan Ping v. United States, 130 U.S. 581, 604

13

The treaty power, as expressed in the Constitution, is in terms unlimited except by those

restraints which are found in that instrument

against the action of the government, or of its

departments, and those arising from the nature of the government itself, and that of the

States. . . . But with these exceptions, it is not

perceived that there is any limit to the questions which can be adjusted touching any

matter which is properly the subject of negotiation with a foreign country.

Geofroy v. Riggs, 133 U.S. 258, 267 (1890) (citation

omitted). The Insular Cases are clear that they are

based on the same principle, and that they find the

power to acquire territory, and determine its governing

law, to exist in the United States because it existed in

all sovereign nations under international law as it

then stood. See Downes, 182 U.S. at 300 ff. (White, J.).21

Under such law, an acquiring power could choose

to “incorporate [the people of an acquired territory]

with his former states, giving to them the rights,

(1889)); Usoyan v. Republic of Turkey, 6 F.4th 31, 41 (D.C. Cir.

2021) (“International law is the source of many powers that are

incidental to sovereignty,” including power to acquire territory, to

expel aliens, and to make international agreements short of treaties). See generally The Nereide, 13 U.S. (9 Cranch) 388, 423

(1815) (“[T]he Court is bound by the law of nations which is a part

of the law of the land.”).

21

In support, Downes cites the Declaration of Independence,

which provides that the United States “have full power to levy

war, conclude peace, contract alliances, establish commerce, and

to do all other acts and things which independent states may of

right do.” Id. at 302.

14

privileges, and immunities of his own subjects,” or, if

circumstances warranted, “govern them with a tighter

rein [and] keep them under subjection.” Id. at 301-02

(quoting Halleck, INTERNATIONAL LAW, ch. 33, § 3).

However, application of the Insular rule does not result

in the same outcome today. The United States is still a

nation and is still, by virtue of being such, empowered

to do what nations may do, but nations may no longer

acquire or maintain colonies. On that point, the law of

nations has changed radically since the time of the Insular Cases. Indeed, it has undergone what might appropriately be called a “sea change.” It now firmly

rejects colonialism, and charges all nations with the

duty to develop self-government in all territories under

their administration. See, e.g., U.N. CHARTER, Art. 73

(“Members of the United Nations which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure

of self-government . . . accept as a sacred trust the obligation to . . . develop self-government[.]”).22

22

See also, e.g., Declaration on the Granting of Independence

to Colonial Countries and Peoples, G.A. Res. 1514 (1960),

A/RES/1514(XV) (“Immediate steps shall be taken, in . . . territories which have not yet attained independence, to transfer all

power to the peoples of those territories, without any conditions

or reservations, in accordance with their freely expressed will and

desire[.]”); International Covenant on Civil and Political Rights,

G.A. Res. 2200 (1966), A/RES/2200(XXI)A, Part I, Art. 1, § 1 (“All

peoples have the right of self-determination. By virtue of that

right they freely determine their political status and freely pursue

their economic, social and cultural development.”); Programme of

Action, G.A. Res. 2621 (1970), A/RES/2621(XXV) (“[T]he further

continuation of colonialism in all its forms and manifestations [is]

15

This does not change the need for constitutional

flexibility that the Insular Cases recognized. On the

contrary, that flexibility is needed at least as much in

developing and safeguarding the islanders’ self-government as it formerly was in “keeping them under

subjection.” That is especially true if the islands are to

remain in some form of association with the United

States, as the law of nations also allows.23 That flexibility was needed when the CNMI was created, and it

was needed in this case in American Samoa. When it is

needed, the Insular Cases are there to provide it. But

the flexibility that they provide is now appropriately

exercised in support of the islanders’ own autonomy, as

the Tenth Circuit recognized in this case. See Fitisemanu v. United States, 1 F.4th 862, 871 (10th Cir. 2021)

(“This same flexibility permits courts to defer to the

preferences of indigenous peoples, so that they may

chart their own course.”); id. at 873 (“[T]he Insular

Cases permit this court to respect the wishes of the

American Samoan people.”); id. at 874 (“The Insular

framework better upholds the goals of cultural autonomy and self-direction.”); id. at 879 (urging recognition

of “consent as a cornerstone of a flexible approach”).

a crime which constitutes a violation of the Charter of the United

Nations . . . and the principles of international law.”).

23

The self-government which is the ultimate goal under

modern intentional law for all territories can be achieved

through independence, full and equal integration, “free association with an independent state.” or “other separate system of selfgovernment.” See, e.g., G.A. Res. 1541 (1960), A/RES/1541(XV);

G.A. Res. 742 (1953), A/RES/742(VIII); G.A. Res. 648 (1952),

A/RES/648(VII); G.A. Res. 567 (1952), A/RES/567(VI).

16

In order to apply the rule of the Insular Cases in

this salutary way, the Tenth Circuit did not need to “extend,” or even “repurpose,” the Cases, although it

claimed to “repurpose” them.24 Nor did it need to apply

Justice Harlan’s “impractical or anomalous” gloss on

the Insular standard from Reid v. Covert, although it

claimed to do so.25 It needed only to apply the basic rule

of the Insular Cases themselves – i.e., that the United

States holds the powers of a nation under international law – correctly and straightforwardly, given the

modern state of international law in favor of self-government and self-determination, and against colonialism.26 Several years ago, the author of this brief wrote:

24

Cf. Reid, 354 U.S. at 14 (“[I]t is our judgment that neither

the [Insular] cases nor their reasoning should be given any further expansion.”) (plurality opinion); Fitisemanu, 1 F.4th at 870

(“[T]he approached developed by the Insular Cases . . . can be repurposed to preserve the dignity and autonomy of the peoples of

America’s overseas territories.”).

25

See Reid, 354 U.S. at 75-76 (Harlan, J., concurring); Fitisemanu, 1 F.4th at 879 (“Though its articulation postdates the Insular Cases, the lodestar of the Insular framework has come to be

the ‘impracticable and anomalous’ standard.”) (citing Reid). See

also Wabol, 958 F.2d at 1462 (applying this standard). But see

Rayphand, 95 F. Supp. 2d 1139 fn. 11 (noting that “the vitality of

that [impractical or anomalous] test is in doubt;” applying original Insular Cases “free government” analysis alone).

26

It could also have gone on to find that self-determination

is fundamental to all free government, thus mandated by the second prong of the Insular rule as well. Cf. Fitisemanu, 1 F.4th at

879 (“[It] is a fundamental and timeless truth [that] a people’s

incorporation into the citizenry of another nation ought to be done

with their consent or not done at all.”).

17

The Insular Cases have received their share

of criticism over the years. They have come to

be seen as an embarrassing relic of manifestdestiny imperialism, reflecting, at best, a result-oriented post hoc justification of politically popular expansionism, and, at worst, a

racist unwillingness to extend to non-white

peoples the basic civil liberties enjoyed by

white Americans. This conventional view of

the Cases must be reassessed.

Joseph E. Horey, The Right of Self-Government in the

Commonwealth of the Northern Mariana Islands, 4

ASIAN-PAC. L. & POL’Y J. 180, 228 (2003) (footnote omitted, emphasis added). The decision of the Tenth Circuit

in this case shows that this reassessment is indeed underway, and that the Insular Cases have at last begun

to live up to their considerable potential as heralds of

a just, free and flexible federal territorial policy. This is

certainly not the time to get rid of them.

---------------------------------♦---------------------------------

CONCLUSION

Because of the reliance that has been placed on

their validity by the people of the Northern Marianas,

and because they were correctly decided in the first instance, the Insular Cases should not be revisited or

overruled, and the petition for writ of certiorari, which

seeks to overturn them, should be denied. Alternatively, if the petition is granted, the writ should be limited to any asserted grounds for citizenship which do

not implicate the Insular Cases.

18

Respectfully submitted this thirteenth day of July,

2022.

JOSEPH E. HOREY

BANES HOREY BERMAN & MILLER, LLC

200 Marianas Business Plaza, Susupe, Saipan

Commonwealth of the Northern Mariana Islands

PO Box 501969, Saipan MP 96950

Telephone: (670) 234-5684

Fax: (670) 234-5683

E-mail: jhorey@pacificlawyers.law

Counsel of Record for Amici Curiae