Why Territorial Courts Matter to American Law

Most Americans know startingly little, or nothing, about the five inhabited U.S. territories: Puerto Rico, Guam, the U.S. Virgin Islands, American Samoa, and the Northern Mariana Islands. Those that do have familiarity likely know the territories primarily for what the over 3.5 million Americans residing there do not have: equal rights under the U.S. Constitution.

The Americans who live in the territories lack the right to vote for president and possess only limited representation in Congress. While those inequities largely stem from the plain text of the Constitution, others arose by judicial fiat through the Insular Cases, a series of decisions rendered by the U.S. Supreme Court between 1901 and 1922 that established distinctions between so-called “incorporated” territories purportedly destinated for statehood — whose residents were afforded the full protections of the Bill of Rights — and “unincorporated” territories simply held as possessions and were only entitled to such constitutional rights conferred by the courts or Congress.

Lost in this legalese, however, is that the Court relied upon the “race, habits, laws and customs of the people” to determine which territories were worthy of such incorporation. Today, many lawyers and jurists, including Justice Neil Gorsuch, view the Insular Cases as “shameful” and based on “ugly racial stereotypes” and which “have no foundation in the Constitution. Nevertheless, despite calls from several justices, the Court has not yet formally overruled the Insular Cases, and the lower courts continue to invoke them as the basis to systematically exclude the territories from many federal social welfare programs and to withhold even foundational constitutional rights such as birthright citizenship and the right to a jury trial.

Often overlooked in the focus on the Insular Cases and other inequities, however, is what the five territories do have: their own constitutions or organic acts and independent court systems empowered to interpret them. Like state supreme courts, territorial high courts play a central role in shaping the law of their jurisdictions. From protecting communal land in American Samoa to rejecting employment-at-will in Puerto Rico, these courts regularly confront constitutional questions in ways that are uniquely territorial while deeply connected to broader American constitutional debates.

The examples below illustrate the kinds of questions territorial courts confront on a regular basis — often in ways that illuminate broader debates in American law.

Who Decides Territorial Law?

The allocation of power between the federal government and the states ultimately comes down to a single question: “Who Decides?” In the nearly 250 years since ratification of the U.S. Constitution, our nation settled on a robust judicial federalism to divide authority between federal and state courts. The U.S. Supreme Court serves as the final arbiter of the meaning of the U.S. Constitution and the application of federal law, whose decisions on those questions bind every other court in the nation. State supreme courts, however, are not bound by decisions of lower federal courts even on federal questions, and — more importantly — serve as the final arbiters on the meaning of state constitutions and application of state law. In fact, all federal courts must apply state supreme court decisions on state law in the cases before them, and when state law is uncertain must either predict how the state supreme court would rule or certify the question to the state supreme court for a final resolution.

But what about the territories? Every inhabited territory has either a territorial constitution or organic act that serves as its charter of its government. In this context, “organic” refers to organization: A territory’s “organic act” is essentially a de facto constitution that, among other things, identifies the branches of government and their powers as well as sets forth a bill of rights. An organic act differs from a territorial constitution in essentially just one way: The people of the territory may not amend the organic act directly but must do so with the approval of Congress.

This raises a natural question: Should courts treat territorial organic acts as if they are territorial constitutions — and afford deference to territorial supreme courts — or as ordinary federal statutes? In the wake of the Insular Cases, the U.S. Court of Appeals for the First Circuit took the position that that the Puerto Rico Organic Act was a “federal law” and that it need not provide any deference whatsoever to the construction given to it by the Supreme Court of Puerto Rico. The U.S. Supreme Court rejected that view in 1940 in Puerto Rico v. Rubert Hermanos, holding that although an organic act is enacted by Congress, it functions as the territory’s fundamental law and must be interpreted with deference to the territorial court of last resort.

Despite this seemingly clear precedent, federal courts in other circuits continued to assert authority over the meaning of territorial constitutions and organic acts. The U.S. Court of Appeals for the Third Circuit concluded that federal courts could exercise federal-question jurisdiction over all claims arising under the Revised Organic Act of the Virgin Islands because it was purportedly a federal statute. The U.S. Court of Appeals for the Ninth Circuit went further, holding in 2002 in Guam v. Guerrero that the Guam Supreme Court lacked authority to interpret the free exercise provision of the Organic Act of Guam to provide greater protection than the First Amendment. And in another case, the Ninth Circuit completely ignored a decision of the Supreme Court of the Northern Mariana Islands that declared a local statute unconstitutional under the territorial constitution, proceeding to simply apply it anyway without even acknowledging the territorial court’s decision.

Three recent territorial supreme court decisions firmly reject this approach. In 2019 in Balboni v. Ranger American, the Supreme Court of the Virgin Islands asserted its authority to definitively interpret the Revised Organic Act as the territory’s de facto constitution in the same manner a state supreme court interprets a state constitution. The court grounded that authority in U.S. Supreme Court precedent and in the legislative history of the Revised Organic Act, which reflected Congress’s expectation that the territorial court would serve as the ultimate interpreter of local law. The U.S. Supreme Court denied a petition for certiorari to review the Balboni decision.

Within the next several years, the Supreme Court of the Northern Mariana Islands and the Supreme Court of Guam relied on Balboni to reach similar conclusions. The 2024 decision of the Guam Supreme Court in People v. Adriatico was especially striking: After examining the legislative history of the Guam Organic Act and the structure of Guam’s judicial system, the court concluded that the Ninth Circuit’s contrary approach — including its decision in Guerrero — “was simply wrong.”

Territorial Courts as Laboratories of Legal Innovation

Justice Louis Brandeis famously wrote that “it is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory” for “novel social and economic experiments.” But some of the most striking innovations in American law have emerged not from the states, but from the nation’s territorial courts.

This development is relatively recent. After acquiring Puerto Rico and other insular territories at the turn of the 20th century, the United States went to extraordinarily lengths to “Americanize” their legal systems. In the U.S. Virgin Islands, for example, Albert Maris — a judge of the U.S. Court of Appeals for the Third Circuit and active member of the American Law Institute — used his influence to impose mandatory reliance on the institute’s Restatements of the Law. Under this approach, Virgin Islands courts were required to treat the Restatements as if they were binding statutory law, effectively stripping local courts of the authority to develop their own common law rules.

Over time, territorial courts began reclaiming that authority. The Supreme Court of the Virgin Islands took a major step in its 2011 landmark decision in Banks v. International Rental & Leasing Corporation, holding that legislation vesting the court with “the supreme judicial power of the Territory” eliminated the longstanding mandate that Virgin Islands courts follow the Restatements as binding law. Instead, the court announced that it and the trial court could independently develop the territory’s common law.

To guide that process, the court articulated what has become known as the Banks analysis, a framework directing courts to consider three factors: first, whether Virgin Islands courts have previously adopted a particular rule; second, the position taken by a majority of courts in other jurisdictions; and third, which approach represents the soundest rule for the Virgin Islands.

Importantly these factors do not carry equal weight. The court recently reemphasized that the most important — and often dispositive — consideration is determining the rule that best serves the needs and policy judgments of the Virgin Islands.

The Virgin Islands Supreme Court’s willingness to prioritize the rule best suited to the territory soon led it to adopt legal doctrines that diverged from the majority approach in other jurisdictions. In 2016 in Antilles School v. Lembach, the court rejected the remittitur doctrine as not representing the soundest rule for the Virgin Islands, becoming only the second United States jurisdiction (besides Oregon) to do so. This innovation extends to statutory interpretation as well, with the court holding in 2015 in Rennie v. Hess Oil V.I. Corporation that the local Wrongful Discharge Act abolished employment-at-will doctrine in the Virgin Islands, effectively creating a right to stable employment.

Other territorial courts, too, have developed their own unique legal doctrines tailored to the needs of their jurisdiction. In many decisions, the Supreme Court of the Northern Mariana Islands directly applies traditional Chamorro and Carolinian customary law, especially in probate and real property cases. And the Supreme Court of Puerto Rico held, in its seminal opinion in Pueblo v. Tribunal Superior, that all judicial proceedings must occur in “the language of the Puerto Rican people” — Spanish.

Protection of Indigenous People and Culture

The 14th Amendment, as interpreted by seminal U.S. Supreme Court decisions such as Shelley v. Kraemer, Brown v. Board of Education, and Loving v. Virginia, prevents state governments from engaging in race- or ancestry-based discrimination. This includes, for instance, a state using its police power to limit the sale or occupancy of real property only to those of Caucasian descent.

Yet blood quantum laws and similar race-based restrictions remain in effect in certain U.S. territories. The Northern Mariana Islands Covenant and Constitution both restrict “the alienation of permanent and long-term interests in real property” to “persons of Northern Marianas descent,” defined as “a citizen or national of the United States and who is of at least one-quarter Northern Marianas Chamorro or Northern Marianas Carolinian blood or a combination thereof.” Similarly, the Constitution of American Samoa declares that it is “the policy of the Government of American Samoa to protect persons of Samoan ancestry against alienation of their lands and the destruction of the Samoan way of life and language, contrary to their best interests.” The Code of American Samoa implements this in several ways, such as by prohibiting land ownership by “any person who has less than one-half Native blood” and only allowing the hiring of non-residents in government if no resident meets the minimum qualifications for the position.

Territorial courts have upheld these laws against 14th Amendment challenges. In 1980 in Craddick v. Territorial Registrar, the High Court of American Samoa found that the territory’s blood quantum-based land alienation laws satisfied strict scrutiny given that “the whole fiber of the social, economic, traditional, and political pattern in American Samoa is woven fully by the strong thread which American Samoans place in the ownership of land,” as well as that the treaties under which the islands that now constitute American Samoa became part of the United States expressly provided for the protection of Samoan lands. And in 1987 in Banks v. American Samoa, the high court upheld the American Samoan hiring preference, holding that courts cannot “deal with Samoa as if it were Alabama or Michigan.” The court found that the law furthered the interest “to ensure self-government,” in that prior to its enactment “there were practically no Samoans in responsible government positions” at all. And in what often comes as a surprise to mainland lawyers, federal courts of appeals have also found such laws constitutional, most notably the U.S. Court of Appeals for the Ninth Circuit in 1990’s Wabol v. Villacrusis, where it rejected a 14th Amendment challenge to the Northern Mariana Islands land alienation laws.

The Reach of the U.S. Constitution

The idea that a state can nullify, or refuse to follow, a federal law or judicial decision it disagrees with it has been emphatically rejected by the U.S. Supreme Court. But can a territory nullify a federal law or court decision? To the typical “stateside” lawyer, the intuitive answer is no. Recall, however, that the U.S. Supreme Court limited the scope of federal constitutional protections in the territories through the Insular Cases.

Territorial courts often interpret territorial constitutions and organic acts to remedy the Insular Cases and provide equal or greater protection than the federal Constitution. Yet some territorial courts invoke the Insular Cases to do the opposite and proactively restrict or take away rights codified in the federal Constitution or recognized by the U.S. Supreme Court.

The High Court of American Samoa held in 2024 that the Second Amendment right to bear arms does not apply at all in the territory. Invoking the Insular Cases, the high court held Wiesner v. Fainu’ulelei “that recognition of the Second Amendment would prove impractical and anomalous as applied to American Samoa.” Application of the Second Amendment, according to the high court, would disturb “the peace and welfare of the inhabitants of American Samoa,” who “have clearly expressed” their opposition to gun rights.

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Territorial courts rarely receive the same attention as state supreme courts, yet they perform many of the same constitutional functions. They interpret territorial constitutions and organic acts, develop the common law, and resolve disputes that shape the political and social life of their communities. At times they also confront issues that rarely arise in the states — from preserving indigenous land alienation laws to navigating the constitutional consequences of the Insular Cases. The decisions discussed here illustrate how territorial courts exercise genuine judicial authority while adapting doctrine to the distinctive needs of their jurisdictions. For lawyers, judges, and scholars interested in the development of American law, these courts are not peripheral institutions. They are essential — if often overlooked — participants in the nation’s constitutional system.

Anthony M. Ciolli is practicing faculty at St. Mary’s University School of Law. He was formerly the president of the Virgin Islands Bar Association and a special assistant to Hon. Rhys S. Hodge, Chief Justice of the Virgin Islands. The views expressed herein are solely my own and not those of the judicial branch of the Virgin Islands, the Virgin Islands Bar Association, or any of their officers or employees.

Suggested Citation: Anthony M. Ciolli, Why Territorial Courts Matter to American Law, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (May 21, 2026), https://statecourtreport.org/our-work/analysis-opinion/why-territorial-courts-matter-american-law