Equally American, a nonprofit group that represents three American Samoans in a citizenship lawsuit, is exploring its next move on the heels an appellate court’s recent ruling, which held that birthright citizenship does not automatically extend to U.S. territories.
“We are disappointed, and frankly surprised, by this result. Last year the Supreme Court made clear that the Insular Cases should not be expanded beyond their limited scope, yet here the Tenth Circuit did just that to deny the right of citizenship to people born in U.S. territories,” said Neil Weare, president and founder of Equally American, which advocates for equal rights in U.S. territories and serves as co-counsel to the Fitisemanu plaintiffs.
“We are considering our options moving forward in light of the Tenth Circuit’s decision to ignore the Supreme Court’s recent guidance narrowing the application of the Insular Cases in U.S. territories,” Weare said.
Citing the role of culture in American Samoa's way of life, the 10th Circuit Court of Appeals ruled Tuesday that automatic U.S. citizenship should not be imposed on those born in American Samoa.
"While the legal question remained murky, one aspect of the nation’s approach to American citizenship in the territories was always clear: it was not extended by operation of the Constitution," the ruling said.
The Fitisemanu plaintiffs have 45 days to consider requesting a review of the panel’s decision.
In 2016, the U.S. Supreme Court declined to take up a similar case involving a different group of plaintiffs raising the same question.
Weare said the appellate court’s position contradicted the U.S. Supreme Court’s earlier ruling in a Puerto Rico case, which held that “the Insular Cases should not be further extended,” questioning their “continued validity” and calling them “much-criticized.”
In a dissenting opinion, Judge Robert Bacharach wrote that the Constitution’s text, purpose and history “unambiguously” guarantee birthright citizenship for people born in U.S. territories.
Charles Ala’ilima, an American Samoan attorney who serves as co-counsel to the Fitisemanu plaintiffs, said the Tenth Circuit's majority opinion fundamentally misunderstands the historical record when it comes to questions of citizenship in American Samoa.
“It is not that American Samoans have a ‘preference against citizenship,’ or that citizenship is ‘not wanted’ – I take Congresswoman Amata and the government of American Samoa to simply be arguing that the question of citizenship should be decided by Congress, not recognized as a constitutional right,” Ala’ilima said.
He said American Samoa’s traditional leaders believed they became citizens when they transferred sovereignty to the United States through the Deeds of Cession in 1900 and 1904.
“When the United States informed our traditional leaders in the 1920s that citizenship was being withheld from American Samoans, they fought for decades to be recognized as full U.S. citizens, only to be repeatedly denied by Congress because of racism and opposition from the U.S. Navy,” Ala’ilima said.
“Today, concerns about U.S. citizenship in American Samoa largely turn on fears that it would threaten the preservation of our land and culture or limit self-determination, but these fears, as explained in Judge Bacharach’s dissent and by other legal experts, are simply not supported by relevant legal precedent or the historical experience of other territories,” Ala’ilima said.