The Americans prosecuted for voting

The case of American Samoan voters in Alaska has implications for all unincorporated territories

By Howard Hills

The state of Alaska is prosecuting Americans born in American Samoa for voting in state elections. Arguments being made in defense of the “outlaw” voters suggest an inherent equivalence between statutory "nationality” and statutory “citizenship” in the territory. 

The terms “nationality” and “citizenship” are generally used interchangeably. For example, the 14th Amendment's Citizenship Clause is codified in the U.S. Immigration and Nationality Act as the status of “national and citizen.”

American Samoans being prosecuted in Alaska offered a plausible explanation supporting their and the elections officials' assumption that nationality was synonymous with citizenship for voting purposes and even candidacy for one successful school board candidate. 

Rep. Amata Radewagen, American Samoa's delegate to Congress, and American Samoa Gov. Nikolau Pula have requested Alaska Gov. Michael James Dunleavy to find an administrative solution rather than pursue pending criminal charges that could result in years of imprisonment.   

The state legislature has expressed concern about the fairness issues raised by the criminal case. However, the prosecution is proceeding. One case is scheduled for a hearing on Jan. 15.

American Samoa is one of five U.S. territories with “unincorporated” political status as defined by the courts and Congress since 1901. Congress has extended U.S. citizenship to persons born or naturalized in four U.S. territories and continues to confer U.S. nationality on persons born in American Samoa. 

All nationals and citizens born in a territory have the same duty of allegiance to our country as citizens born in a state of the union under the 14th Amendment.

Whether national and citizen based on birth in a state or in a territory under federal statute, Americans in any unincorporated territory do not have equal rights of citizenship compared to Americans residing in a state.  That includes equal voting rights for equal representation in Congress and in the Electoral College that elects the president.

The U.S. Supreme Court has ruled that, in general, nationality and/or citizenship conferred on individual Americans, whether statutorily or constitutionally, cannot be rescinded or terminated unless voluntarily relinquished.

However, the court has also held that failure to satisfy any conditions imposed by Congress at the time nationality or citizenship is conferred may result in retroactive loss of U.S. nationality and/or citizenship. 

Congress may amend the terms of, or repeal, any federal statute that confers nationality and/or citizenship in the future, as it did when it ended nationality and citizenship for children of former American nationals and citizens who elected allegiance to the new successor nation. 

American Samoa is the only U.S. territory in which Congress enacted a law that classifies persons born in American Samoa as “nationals but not citizens.”

That is consistent with the 1929 federal law recognizing U.S. sovereignty and the obligation to protect local customs and traditions. Americans in all territories at that time were “nationals,” but unlike territories seeking citizenship, the American Samoa government wanted any change to those historic documents to be initiated through local self-determination.

U.S. "nationals" from American Samoa have limited rights compared to U.S. "citizens" from the four other American territories, namely Guam, the Northern Marianas, Puerto Rico and the U.S. Virgin Islands.

The limitations of rights apply when an American Samoan relocates to a state. That is when state laws limiting voting rights become an issue for “nationals but not citizens.”    

Rep. Amata Coleman Radewagen, American Samoa's delegate to Congress, has filed legislation to protect her constituents' rights to freedom of travel and residence in Alaska and other states.  

ADVERTISEMENT

H.R. 6158, the American Samoa Statutory Nationality and Citizenship Act, would establish a pathway to citizenship. It would enable American Samoans to act individually to be classified as both nationals and citizens. 

In 2022, the U.S. Supreme Court declined to review a U.S. Circuit Court of Appeals ruling in Fitisemanu v. U.S., which held that the 14th Amendment does not apply to unincorporated territories and does not grant Americans born in the territories the same “nationality and citizen” status as Americans born in states. For those born in Guam and the CNMI, the U.S. birthright citizenship is statutorily based.  

The Supreme Court's refusal to take up the Fitisemanu v. U.S. case prevented further determination of what other constitutional provisions do or do not apply to each territory should it become a state. That scenario for judicial incorporation would preclude government by consent of the governed in future political status options, such as statehood or independence. 

Judicial rulings applying a new status to all territories would substitute the court’s decisions on future political status for self-determination. That would repeat the “original sin” of the Insular Cases that invented unincorporated territory status.     

Howard Hills a former legal advisor on territorial status in the Executive Office of the President, U.S. State Department, U.S. Navy JAG and Department of the Interior.

Subscribe to

our digital

monthly edition