By Edward Hunt*
The Justice Department claimed in a brief published 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,” as one critic has put it.
The Justice Department’s decision follows a months-long campaign by rights groups against the Insular Cases, 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, 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 that 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, Supreme 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 opened 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, 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 the Supreme Court to consider whether the Citizenship Clause applies to the territories and whether the Insular Cases are unconstitutional. Rights groups and territorial officials backed 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.
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 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 that 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 that 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.