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.