The concept that people born on U.S. soil are citizens from birth may seem simple and straightforward. For American Samoans, it is anything but.
When the U.S. Supreme Court declined in October to reconsider a series of early 20th century rulings referenced in Fitisemanu v. U.S., which denied full citizenship rights to residents of U.S. territories, it seemed outrageous to some. Those rulings were based mainly on racist assumptions about Black and Brown residents of the United States’ territorial acquisitions. And these residents have since been treated as separate and unequal.
“The fundamental issue of citizenship is already decided,” says American Samoan attorney Charles B. Ala’ilima. “The Constitution grants you citizenship.”
But others, including American Samoan leaders, fear upending those rulings could cause legal, political, and cultural collateral damage. Foisting U.S. citizenship on a community that hasn’t asked for it, they say, could threaten not only American Samoans’ right of self-determination but also their very way of life.
“There are American Samoans who don’t want to be citizens,” says Michael Williams, who represented the American Samoan government in urging the Supreme Court not to take up the challenge. “The sole question is: Who makes that decision?”
There is one point of agreement: The Insular Cases, the aforementioned series of Supreme Court rulings beginning in 1901 that affirmed the right of the federal government to deny residents in U.S. territories the same rights as people born in the 50 states — are indefensibly racist. In the first, Justice Henry Billings Brown, the infamous author of the “separate but equal” doctrine in Plessy v. Ferguson, wrote that territory residents may be so savage as to be ungovernable.
“If those possessions are inhabited by alien races, differing from us in religion, customs, laws, methods of taxation, and modes of thought, the administration of government and justice, according to Anglo-Saxon principles, may for a time be impossible,” Brown said.
Beyond that consensus is a complex debate about American Samoa being the only major U.S. territory that hasn’t been granted birthright citizenship by an act of U.S. Congress, and what — if anything — should be done about it.
Amata Coleman Radewagen, American Samoa’s U.S. House delegate, says the court’s decision to stay out of the debate is essential for “preserving our Fa’a Samoa” (the Samoan way).
“This result is of utmost importance to preserving the American Samoa we know with the continuation of family land and our matai heritage, which our ancestors very clearly did not intend to let go,” Radewagen says.
That tradition, in which land rights are granted to all American Samoan families as determined by a Samoan chief, or matai, is one of many that could be upended if the Insular Cases are overturned without clarity on their citizenship status. This right to land and other traditions are central to the American Samoan way of life, which is more valuable than American citizenship to some.
Legal challenges, largely being waged in federal courts thousands of miles away, leave out the American Samoan people who have relied on existing law to craft the kind of lives and governance they want, says Line-Noue Memea Kruse, associate editor of the Pacific Studies Journal at Brigham Young University – Hawaii.
“If the Insular Cases are overruled … there are still ambiguities that have not been fleshed out,” Kruse says.
Those challenging the Insular Cases say citizenship can be extended to American Samoans without threatening the right of the people to determine their own governance. The real problem, they say, is denying citizenship rights to American Samoans, who cannot vote in federal elections or hold certain jobs based on their second-class status. This is the sticking point for John Fitisemanu, the lead plaintiff in Fitisemanu v. U.S., born in American Samoa, a U.S. territory since 1900. He cannot vote in Utah because of his status as a national but not a citizen.
“The issue of self-determination is already being addressed,” says Ala’ilima, who notes American Samoans can still decide their own fate as citizens: Either embark on a path toward statehood or vie for independence.
As for the Biden administration’s position: Officials urged the court not to take up the challenge because territorial citizenship is for Congress to decide by statute, not for courts to determine.
Neil Weare, attorney for the challengers, said that move was disappointing.
“In a way, it reflects the marginalization and disempowerment of residents of the territories insofar as the federal government was not willing to join the cause to overrule the racist Insular Cases, and instead just continues to defend them,” Weare says.
While the Supreme Court declined to hear the challenge to the Insular Cases now, Justices Sonia Sotomayor and Neil Gorsuch have decried them as racist and without basis in law. It would take only two more justices to reconsider overturning these cases in the future. Unless Congress acts first.