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Biden administration mum on Insular Cases, asks court to ditch citizenship case

By Mar-Vic Cagurangan

The U.S. Department of Justice on Monday asked the Supreme Court to reject the Fitisemanu case on citizenship rights for American Samoa, noting that the territory's elected leaders themselves do not want to disrupt the status quo.

"The views expressed by the American Samoan people provide a further reason to deny the petition for a writ of certiorari. The people of American Samoa have not formed a collective consensus in favor of United States citizenship," reads the department's brief filed by U.S. Solicitor General Elizabeth Prelogar.

The brief, which was filed in response to the Fitisemanu v. United States petition, was silent on the petitioners' request for the Biden administration to ask the court to overrule the Insular Cases -- a series of Plessy vs. Ferguson-era decisions that established a doctrine of "separate and unequal" for residents of U.S. territories.

The American Samoan government filed a separate brief that mirrors the U.S. solicitor general's position, arguing that U.S. citizenship cannot be "imposed" on American Samoans.

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Prelogar pointed out that the Insular Cases held that the Constitution applies “only in part” in unincorporated territories, but she docked the question of whether the doctrine should stay or go.

While the petition involves American Samoa, the court's ruling on this case will have an equal impact on the other U.S. territories including Guam, the Northern Marianas, Puerto Rico and the U.S. Virgin Islands.


She said the U.S. government's position on the citizenship case "relies on the text of the Citizenship Clause, which confers citizenship only on persons born in 'the United States,' which "predates the Insular Cases."

"The ordinary tools of constitutional interpretation—including text, context, historical practice, and precedent—establish that the term 'the United States,' as used in that provision, does not include American Samoa," the brief stated.

"The multi-step framework from the Insular Cases is therefore beside the point. As a result, this case would be an unsuitable vehicle for reexamining those cases," Prelogar said.


Prelogar noted that inhabitants of other territories, such as Puerto Rico, obtained citizenship as a result of legislation, not as a result of judicial decisions.

"The same process remains available to the people of American Samoa. If the American Samoan people form a consensus in favor of birthright citizenship, the territory’s delegate to the U.S. House of Representatives could bring that issue to Congress’s attention, and Congress could change federal law at that time," the solicitor general said.

"As it stands, American Samoa’s delegate has already proposed legislation that would further streamline the naturalization process for American Samoans.

and the territorial legislature has endorsed that proposal."

Prelogar said imposing U.S. citizenship on all persons born in American Samoa "would eliminate the opportunity for the American Samoan people to consider the issue democratically and to develop a consensus as to its proper resolution."

"Those disruptive consequences are particularly unwarranted because federal law already allows American Samoans to naturalize as U.S. citizens after moving to any state, to the District of Columbia, or to any territory outside American Samoa, and to use their previous time residing in American Samoa to satisfy the five-year residency requirement for naturalization."

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