[In a recently published brief, the Justice Department claimed
that residents of U.S. territories do not have a right to U.S.
citizenship under the Constitution.]
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WHY ARE AMERICAN SAMOANS NOT AMERICAN CITIZENS?  
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Edward Hunt
September 13, 2022
Foreign Policy in Focus
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_ In a recently published brief, the Justice Department claimed that
residents of U.S. territories do not have a right to U.S. citizenship
under the Constitution. _

Flag of American Samoa, Wikimedia

 

The Justice Department claimed in a brief
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on August 29 that the people of American Samoa do not have a
constitutional right to U.S. citizenship.

Taking up the Fourteenth Amendment’s Citizenship Clause, which
grants citizenship to “all persons born or naturalized in the United
States, and subject to the jurisdiction thereof,” the Justice
Department determined that the amendment’s notion of “the United
States” refers only to the states.

“The term ‘the United States,’ as used in the Citizenship
Clause, does not include the territories,” the Justice Department
asserted.

The Justice Department’s brief, which was approved by Solicitor
General Elizabeth Prelogar, perpetuates the colonial logic that people
born in U.S. territories do not have the same rights as people born in
the states. For over a century, the U.S. government has taken the
position that the territories are part of the United States while its
residents are limited in their rights under the Constitution. The
territories are “separate and unequal
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as one critic has put it.

The Justice Department’s decision follows a months-long campaign by
rights groups against the Insular Cases
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a series of century-old rulings that provide the legal basis for the
United States to maintain territories that will never become states.
Rights groups have criticized the Insular Cases for creating a
colonial structure in which inhabitants of U.S. territories are
relegated to a subordinate status in the U.S. political system.

In an August 23 op-ed
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the leaders of the ACLU, NAACP Legal Defense & Educational Fund, and
LatinoJustice PRLDEF described the Insular Cases as “a relic of a
colonial past” and called on the Biden administration to “publicly
condemn them.”

Neil Weare, the president of Equally American, an organization that is
leading the legal effort to overturn the Insular Cases, said in an
August 29 statement
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the Insular Cases “were grounded in a vision of white supremacy that
has no place in our society, much less briefs filed by the U.S.
Justice Department.”

A major consequence of the Insular Cases is that people born in the
territories have been permanently denied a constitutional right to
U.S. citizenship. Periodically, Congress has granted U.S. citizenship
to residents of particular territories. It extended U.S. citizenship
to Puerto Rico in 1917, the U.S. Virgin Islands in 1927, Guam in 1950,
and the Northern Mariana Islands in 1986.

Congress has never extended U.S. citizenship to American Samoans, whom
it has classified as U.S. nationals. Since the United States took
control of the territory in 1900, the people of American Samoa have
remained U.S. colonial subjects.

American Samoa is a group of islands and atolls in the Pacific Ocean.
It is home to about 50,000 people.

In an April 21 ruling
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Court Justices Neil Gorsuch and Sonia Sotomayor condemned the Insular
Cases, particularly their racist logic that the people who inhabit the
territories are “alien races” unfit for democracy.
Their criticisms
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the door for the Supreme Court to reconsider the Insular Cases.

“The time has come to recognize that the Insular Cases rest on a
rotten foundation,” Gorsuch wrote. “And I hope the day comes soon
when the Court squarely overrules them.”

A potential case for overruling the Insular Cases is Fitisemanu v.
United States [[link removed]], which
centers on John Fitisemanu, a U.S. national born in American Samoa who
has been living in Utah with limited rights for the past two decades.
Fitisemanu and his fellow plaintiffs argue that people born in U.S.
territories have a constitutional right to citizenship under the
Citizenship Clause of the Fourteenth Amendment.

Once Gorsuch and Sotomayor had confirmed their opposition to the
Insular Cases, the legal counsel for Fitisemanu petitioned
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Supreme Court to consider whether the Citizenship Clause applies to
the territories and whether the Insular Cases are
unconstitutional. Rights groups
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officials
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the petition, urging the Biden administration to support Fitisemanu
and oppose the Insular Cases.

Evidence from the historical record supports the notion that the
Citizenship Clause applies to both states and territories. When
congressional leaders drafted the Fourteenth Amendment, the popular
understanding of the term “United States” included states and
territories, as indicated by maps and newspapers from the time. The
senators who drafted the amendment argued that people born in the
territories are citizens.

Birthright citizenship “refers to persons everywhere, whether in the
States or in the Territories or in the District of Columbia,” U.S.
Senator Lyman Trumbull explained
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Dismissing this historical context, the Justice Department presented
an interpretation of the Citizenship Clause that renders it
inapplicable to the territories. In a textual analysis of the
Constitution, the Justice Department claimed that references to “the
United States” are ambiguous and not always inclusive of the
territories. The Justice Department reinforced this interpretation by
citing U.S. colonial practices in places such as the Philippines,
where questions of citizenship had been determined by Congress.

“That longstanding congressional practice confirms that the
Citizenship Clause does not confer citizenship upon people born in
territories such as American Samoa,” the Justice Department
insisted.

The Justice Department claimed that its interpretation was unrelated
to the Insular Cases, despite the fact that U.S. colonial practices
have been rooted in the cases for the past century. The department’s
brief discouraged the Supreme Court from taking up Fitisemanu’s
case, which it described as “an unsuitable vehicle” for
reconsidering the Insular Cases.

The Justice Department has received strong backing from the government
of American Samoa, which has opposed the effort to overturn the
Insular Cases. On the same day that the Justice Department published
its brief, the government of American Samoa published a brief
[[link removed]] consistent
with the Justice Department’s interpretation.

According to the government of American Samoa, U.S. citizenship would
imperil the American Samoan way of life, particularly the privileges
of _matai_, or chiefs, who serve in the upper house of the
territorial legislature, manage land that is held in common, and
enforce religious observances, such as evening prayer curfews. Its
petition cited “widespread agreement” among American Samoans that
the best way of addressing the issue “is through democratic debate,
not judicial decree.”

It remains unclear how most American Samoans feel about U.S.
citizenship. A federal court
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ruled against Fitisemanu last year speculated that American Samoans
supported their government’s position, but the court acknowledged
that “limited evidence exists regarding American Samoan public
opinion on the question of birthright citizenship.”

American Samoan Attorney Charles V. Ala’ilima, who is co-counsel on
the Fitisemanu case, noted in an August 29 statement
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previous generations of American Samoan leaders had sought U.S.
citizenship for the people of American Samoa.

“If our leaders today don’t want to be a part of the United
States… they should say so,” Ala’ilima said. “But so long as
the U.S. flag flies overhead our people have a constitutional right to
be recognized as citizens that Congress has no power to deny.”

With the debate far from settled, the Supreme Court could take up the
issue this fall.

_EDWARD HUNT writes about war and empire. He has a PhD in American
Studies from the College of William & Mary._

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* American Samoa
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* citizenship
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* U.S. Constitution
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* U.S. history
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* U.S. Justice Department
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* 14th amendment
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* colonialism
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