The American Samoan government and American Samoa’s non-voting delegate to Congress Aumua Amata Coleman Radewagen (R) continued to argue in a new filing to the United States Supreme Court that people born in US territories have no constitutional right to US citizenship. Instead, they agree with the US Department of Justice that Congress has the unilateral power to deny citizenship to people born in US territories. In their view, American Samoa—which has been a US territory since 1900—is neither “in the United States” nor “subject to the jurisdiction thereof” for purposes of the Citizenship Clause of the Fourteenth Amendment.
In a statement to American Samoa’s Constitutional Convention, Amata decried the “threat from outside special interests,” referring to Equally American and lawyers in the case, for wanting to “impose US citizenship on American Samoans.” Equally American’s President Neil Weare is co-counsel in Fitisemanu v. United States.
“Our elected officials today continue to ignore that the traditional leaders who ceded sovereignty of our lands to the United States did so on the understanding that they would be recognized US citizens as a result. In fact, after the federal government imposed the second-class status of non-citizen national in the 1920s, for decades our leaders fought for American Samoans to be recognized as full US citizens,” said American Samoan Attorney Charles V. Ala’ilima, who serves as co-counsel for the Fitisemanu petitioners along with attorneys at Equally American and Gibson, Dunn, & Crutcher LLP.
“The idea that American Samoa is not ‘in the United States’ is baffling—not only is ‘American’ in the name itself, but American Samoans have the highest military enlistment and casualty rates of any US jurisdiction,” Ala’ilima added. “To argue that American Samoa is not ‘subject to the jurisdiction’ of the United States even as our Constitutional Convention attempts to limit the unilateral authority of Congress and the Secretary of the Interior over our people is simply unbelievable.”
Ala’ilima concluded, “If our leaders today don’t want to be a part of the United States, or if they want a status similar to Micronesia, they should say so. But so long as the US flag flies overhead our people have a constitutional right to be recognized as citizens that Congress has no power to deny.”
Current and former elected officials from Guam, the Northern Mariana Islands, Puerto Rico, and the US Virgin Islands have filed briefs in support of recognizing a right to citizenship in US territories, and calling on the Supreme Court to overrule the Insular Cases. Earlier this year, they argued to the Supreme Court that “all persons born in the United States, including the territories of the United States, have equal entitlement to the Constitution’s promise of birthright citizenship.”
The American Samoan government’s brief argues that federal courts should not recognize a right to US citizenship, believing that such a decision could threaten American Samoan self-determination or the Fa’a Samoa, the traditional Samoan way of life.
“The Fitisemanu plaintiffs agree with American Samoan officials on the importance of self-determination and cultural preservation, they just disagree that recognizing a right to citizenship would threaten those values,” Ala’ilima stated. “Once again, American Samoan officials fail to provide any legal basis for their concerns over citizenship.”
The view that recognition of a right to citizenship is compatible with protecting self-determination and cultural preservation is emphasized in the brief filed by elected officials from other territories who “demonstrate through their own experiences how US citizenship is fully compatible with the Territories’ right to self-determination, their local legal traditions, and the preservation of their vibrant cultural heritage.”
Legal scholars who have considered the objections to recognition of citizenship raised by American Samoan officials have found them legally unfounded. Professor Christina Ponsa Kraus writes in a recent article published in the Yale Law Review that “citizenship would not threaten any of the cultural practices at issue,” arguing further that “even without the Insular Cases, constitutional law contains sufficient flexibility to accommodate most, if not all, of the cultural practices.” Professors Cassandra Burke Robertson and Irina D Manta emphasize in a recent Texas Law Review article that “at this time there is no affirmative legal authority suggesting that citizenship would play any role in deciding the legality of these [cultural] practices.” Professors Guy C. Charlton and Tim Fadgen further explain in a recent article published in a UCLA journal that “using the Insular framework to argue that Sāmoan self-determination is enhanced inappropriately conceptualizes the notion of self-determination.”
While American Samoan elected officials have opposed recognition of a right to citizenship for those born in American Samoa, those views are not shared by all. Over the course of the Fitisemanu litigation, hundreds of American Samoans living throughout the United States have expressed strong dissatisfaction over being denied recognition as citizens, and also explained many ways in which being denied citizenship has impacted their lives.
Some American Samoan officials insist that the Fitisemanu plaintiffs and others who want to be recognized as citizens should just naturalize. But those living in American Samoa are not even legally able to naturalize. And those who have established the requisite residency in the states are required to go through the same naturalization process as an eligible foreign national – an expensive, stressful, and burdensome process that can take 1-2 years or more and has no guarantee of success.
“The discriminatory denial of citizenship to people born in American Samoa makes it harder for our community’s voice to be heard politically, and harder for our people to succeed economically,” said Michelle Mataese, President of the Los Angeles-based Samoan Federation of America, which filed a brief in support of the Fitisemanu petitioners outlining the historical support for citizenship in American Samoa and addressing how the denial of citizenship causes real harms without serving to advance American Samoa self-determination or cultural preservation. “Our traditional leaders who signed the Deeds of Cession were right – with the transfer of sovereignty over our lands to the United States, our people gained a right to be recognized as US citizens, and citizenship presents no threat to our culture or self-determination.”
The Fitisemanu plaintiffs will be filing their reply to the United States and American Samoan government in the coming weeks. The Supreme Court will consider whether to take up the Fitisemanu appeal in October or November.
I certainly support the plaintiffs’ desire for US citizenship, and I agree that the Insular Cases were based on unacceptable concepts and that the perceived threat of US citizenship on traditional institutions is unfounded. However, there is another negative consequence of imposing US citizenship on all American Samoans, which shockingly no one has mentioned in any court filings or articles about this subject. And unlike the dubious concerns of the American Samoan government, this consequence would be certain and immediate: American Samoans living in other countries would become subject to the absurd system of US citizenship-based taxation.
Unlike almost any country in the world, the United States taxes not only the income generated there and the foreign income of its residents, but also the foreign income of its citizens who don’t live there. But the tax itself isn’t even the main problem. The system also includes a myriad of complex reporting requirements on non-US assets, with enormous penalties for noncompliance even if there is no tax due, in addition to restrictions on non-US bank accounts and investments. The restrictions are so burdensome that every year thousands of US citizens residing abroad renounce US nationality in what they see as their only solution, as their pleas have been utterly ignored by Congress for decades. But non-citizen nationals abroad are not subject to any of these problems. They enjoy the unique combination of having a US passport and the unrestricted right to reside in the United States while not being subject to the US tax system. US citizens abroad would actually love to have this status, but US law does not allow anyone to acquire it after birth.
It is important to have a perspective of how many non-citizen nationals would be affected positively or negatively by US citizenship. There are about 30,000 non-citizen nationals residing in the United States, for whom US citizenship would indeed confer some additional rights and benefits, while not causing almost any negative consequence. Articles about the subject tend to focus entirely on this group, but they are not even the majority of non-citizen nationals. There are about 30,000 more non-citizen nationals residing in American Samoa (this is not the entire population of American Samoa, as the rest are US citizens or foreign nationals), for whom US citizenship wouldn’t practically make any difference, positive or negative. They already have the right to vote and to work in government jobs there, and they are already subject to the US tax system as residents of a US territory (with an unlimited exemption on local income, which is taxed instead by the American Samoan government). But there are also about 4,000 non-citizen nationals in other countries, mostly in independent Samoa, New Zealand and Australia. For them, US citizenship wouldn’t confer practically any additional right that they don’t already have, and it would be mostly harmful due to the US tax system.
When the Northern Mariana Islands became a US territory, its residents automatically became US citizens but for six months they could individually choose to become non-citizen nationals if they wished. But if the lawsuit is successful, American Samoans will not have that choice. They will only be allowed to remain US citizens or to renounce US nationality altogether.
I cannot understand why the plaintiffs insist on this lawsuit, which is actually a repetition of another failed lawsuit from a few years ago. If they want to become US citizens, they can easily apply for naturalization. The process is indeed somewhat annoying as it requires a fee of $725, waiting many months and attending three appointments in different locations, but the overwhelming majority of applicants are approved. It is certainly a lot easier, cheaper and faster than a lawsuit. Delegate Amata has also proposed a bill that would reduce the naturalization requirements for American Samoans even further. The plaintiffs should be avocating for this bill or other changes that would allow people to individually choose their status, not a lawsuit that would force a status on a lot of people who don’t want it.