By Mar-Vic Cagurangan
Birthright citizenship and self-determination are not legally connected, according to an American Samoan lawyer who represents the petitioners in the Fitisemanu v. United States case.
Attorney Charles V. Ala’ilima issued the statement in response to the American Samoan government's claim that automatic citizenship would jeopardize the territory's aim of achieving self-determination.
“There is no disagreement in this case on the importance of protecting self-determination and culture in American Samoa," Ala’ilima said. "But recognition of citizenship does not threaten those values, and American Samoan officials have yet to provide any plausible legal basis for their arguments that it would.”
The U.S. Supreme Court is set to decide on Oct. 7 whether or not it will take up the Fitisemanu v. United States case, which is touted to resolve the citizenship question involving American Samoa.
According to Equally American, a nonprofit that advocates for equal rights in U.S. territories, the Fitisemanu petition offers the Supreme Court a rare opportunity to overrule the Insular Cases, a series of century-old court decisions that upheld the second-class status of U.S. territories.
On Aug. 29, the U.S. Department of Justice and the American Samoan government filed separate briefs asking the Supreme Court to toss the petition, both arguing that the Citizenship Clause does not automatically extend to people born in U.S. territories.
“It would be the height of irony to use the overruling of the Insular Cases to cut off that ongoing democratic dialogue, deprive the American Samoan people of their fundamental right to self-determination, and force them to accept birthright citizenship regardless of their wishes,” the American Samoan government stated in its brief.
“Our traditional leaders who signed the deeds of cession were right to believe they had become U.S. citizens when they transferred sovereignty to the United States and they were right to understand that citizenship does not threaten American Samoa’s culture or way of life," Ala’ilima said.
"If our leaders today no longer want to be a part of the United States, they should say so. But the Fourteenth Amendment of the United States makes very clear that Congress has no power to deny citizenship to any Samoan born in American Samoa as a birthright so long as the U.S. flag flies over our islands," he added.
John Fitisemanu, the lead plaintiff in the case, expressed hope that the Supreme Court will finally settle "the question of whether people born in U.S. territories have a right to citizenship."
“I was born on U.S. soil like any other American, I should have the same right to citizenship as any other American. The Supreme Court has avoided answering this question for more than a century. That’s long enough,” he added.
Born in American Samoa, Fitisemanu now lives in Utah, where he is denied the right to vote and excluded from jobs reserved for U.S. citizens.
“You would think that in 2022 we would no longer be debating the validity of Supreme Court cases that labeled people like me ‘savages’ and ‘alien races,’” Fitisemanu said.
Under federal law, persons born in American Samoa are U.S. nationals, not U.S. citizens. As U.S. nationals, they owe allegiance to the United States, may enter the United States freely, may apply for U.S. citizenship without first becoming a permanent resident, and may serve (as many American Samoans have) in the U.S. Armed Forces.
“For too long there has been uncertainty over whether people born in overseas territories have a constitutional right to be recognized as U.S. citizens, and whether the controversial Insular Cases remain ‘good law,’” said Neil Weare, president and founder of Equally American, which represents the Fitisemanu plaintiffs along with Ala’ilima and attorneys at Gibson, Dunn & Crutcher LLP.
“The Supreme Court itself has contributed to this confusion, so it is important for the Court today to provide clarity on who has a right to citizenship and whether the controversial Insular Cases continue to control basic constitutional questions in U.S. territories," Weare said.
In their reply brief presented to the Supreme Court today, the petitioners highlighted the Justice Department’s “sudden about-face on the Insular Cases.”
While they previously argued that the Tenth Circuit should rely on the Insular Cases to deny recognition of a right to citizenship, now they attempt to step away from the Insular Cases and mischaracterize the Tenth Circuit’s decision as not relying on the Insular Cases at all.
“We’ve seen this move before, where the Justice Department relies on the Insular Cases when arguing in front of judges who are bound by them, but then disclaims any reliance on the Insular Cases once they are before Supreme Court Justices who have the power to overrule them,” Weare said.
“I don’t think anyone will be fooled - the argument against a right to citizenship in U.S. territories continues to begin and end with the racist Insular Cases," he added.