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  • Writer's pictureBy Gabriel McCoard

A new life for the Insular Cases

American Samoa’s joy is Guam’s defeat along with that of other island territories

We have grave misgivings about forcing the American Samoan people to become American citizens against their wishes. They are fully capable of making their own decision on this issue, and the current law authorizes each individual Samoan to seek American citizenship should it be desired. The Insular Cases, despite their origins, allow us to respect the wishes of the American Samoan people within the framework of century-old precedent. It follows that they are not only the most relevant precedents, but also the ones that lead to the most respectful and just outcome.

-Fitisemanu, et. al. v. US, No. 20-4017 (10th Cir. 2021).

On the heels of the Guam Legislature’s criticism of the Insular Cases comes the June 15 decision in the Fitisemanu case, in which a divided three-judge panel from the Denver-based 10th Circuit Court of Appeals found that the Insular Cases are, in fact, valid law.

Reversing a decision from a federal court in Utah, the appeals court ruled that American Samoans are not U.S. citizens because Congress has not granted that right. The ruling also pointed out that U.S. citizenship could undermine traditional Samoan society, and that the people of American Samoa do not desire citizenship.

Insular Cases refer to a series of century-old opinions from the U.S. Supreme Court that created a distinction between incorporated and unincorporated territories — with incorporated territories bound for statehood, or at least citizenship. The Insular Cases doctrine established that it is up to Congress to determine the extent of the U.S. Constitution’s reach into territories.

While Guam senators, some members of the U.S. House of Representatives and numerous scholars have attacked the Insular Cases for, at the risk of oversimplifying, using discredited theories of racial development to justify imperialism, the government of American Samoa has taken the opposite approach and argued against birthright citizenship for its citizens.

U.S. territories do not speak with one voice. There is no reason to expect them to.

The Fitisemanu case is the latest interpretation of whether American territories are “in the United States” under the Citizenship Clause of the 14th Amendment.

The case also deals with the question of whether citizenship is a fundamental right beyond the reach of Congress.

This is unlikely to be the last word on the subject.

American Samoa is an unincorporated territory. Its inhabitants are U.S. nationals, rather than citizens. While they are entitled to open immigration and employment rights in the U.S. as non-citizens, American Samoans cannot vote, run for state or federal elected office, or serve on a jury. While they can enlist in the U.S. military, they cannot serve as officers.

Three individuals residing in Utah sued the U.S., arguing that they are U.S. citizens from birth on the basis that they were born in a U.S. territory. The U.S. District Court for the District of Utah agreed.

The appeals court, however, found that questions of citizenship were best left to Congress and questioned whether there is a widespread desire for American Samoans to be American.

“We instead recognize that Congress plays the preeminent role in the determination of citizenship in unincorporated territorial lands, and that the courts play but a subordinate role in the process,” the court said.

The opinion further stated that “it is not the role of this court to second-guess the political judgment of the American Samoan people.”

Such considerations, the court added, “belong most properly to Congress at the initial stage, not to us.”

Granting citizenship against the wishes of the American Samoan people could be a “potential disruption of their way of life by judicial imposition of citizenship,” the court said.

The appeals court recognized fa’a Samoa, Samoan traditional culture, which the now-discredited anthropologist Margaret Mead defined in the 1920s as “in Samoan fashion.” While it conflicts with many of the guarantees of individual rights enshrined in the U.S. Constitution, fa’a Samoa found adequate safeguards in place within American Samoa.

“Fundamental elements of the fa’a Samoa rest uneasily alongside the American legal system. Constitutional provisions such as the Equal Protection Clause, the Takings Clause, and the Establishment Clause are difficult to reconcile with several traditional American Samoan practices,” but that essential freedoms such as freedom of religion and equal protection, already exist under law, including the language of the 1904 cession agreement that turned the chain into a U.S. territory.

The dissenting justice, Robert Bacharach, argued that U.S. territories are part of the United States, and as such, the 14th Amendment “unambiguously applies.”

Given the rights that citizenship bestows, such as voting and military career advancement, it is fundamental and thus not subject to legislative approval, as is the case with other constitutional guarantees.

The dissenter noted that “the practicality of applying a constitutional amendment does not depend on the practices of elected legislators, whether they are in the U.S. Congress or the Fono [the territorial legislature], for constitutional rights do not flicker with the practices of political majorities.”

Perhaps significantly, the ruling shows that territories are not united. There is no reason to expect them to be; different territories have different stakes in the outcome.


In a “friend of the court” brief, the U.S. Virgin Islands Bar Association urged the court to uphold the Utah decision, stating that to do otherwise “would send the unequivocal message to each of those Americans that their citizenship — a foundational principle of every American’s identity — can be destroyed at any moment by Congress, a governmental unit in which territories have no voting representation.”

The parties are contemplating the possibility of seeking further review, including an appeal to the U.S. Supreme Court. The question of the relationship between territories and the U.S., and of the rights afforded to islanders within the U.S. as well as those of outsiders in the islands, is far from settled.

For now, the Insular Cases have a new life. And American Samoa’s joy is Guam’s defeat, along with that of other island territories.

Gabriel McCoard is an attorney, who previously worked in Palau and Chuuk State. He is currently weathering the pandemic stateside. Send feedback to

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