How American Samoa’s citizenship status became a criminal question in Alaska

American Samoa is the only United States territory whose residents Congress has not recognized as having birthright citizenship. While people born in American Samoa are considered non-citizen US Nationals, those born in other US territories, like Guam, Puerto Rico, and Hawaii, are automatically granted US citizenship at birth.

In 2019, a US federal court in Utah ruled in favor of American Samoans seeking recognition of citizenship. Later, that decision was overturned in Fitisemanu v US (2021) by an appeals court, arguing that “neither constitutional text nor Supreme Court precedent demands district court’s interpretations of the Citizenship Clause of the Fourteenth Amendment.” This reasoning echoed that of Tuana v US (2015), which also rejected the constitutional birthright citizenship for American Samoa. In both cases, lower courts followed the precedent set in the Insular Cases (1901-1922). The lower courts argue that the Fourteenth Amendment does not automatically extend to unincorporated territories and only “fundamental” rights apply automatically.

These frameworks were later challenged in US v Vaello Madero (2022), where Justice Gorsuch (nominated by Trump in 2013) stated that the Insular Cases “have no foundation in the Constitution and rest instead on racial stereotypes.” Legal scholars argue that this denunciation opens challenges to the territorial citizenship doctrine and citizenship litigation.

Tensions surrounding American Samoa citizenship sparked in Alaska, the only state to initiate criminal prosecutions against American Samoans solely on the basis of their non-citizen national status. The first case emerged in 2023, when Tupe Smith, a Whittier resident who ran for and won a local school board seat, was arrested and charged with voter misconduct and felony perjury. The following ten cases involve other Whittier residents, mostly members of Smith’s extended family. State indictments alleged that they voted illegally and falsely represented themselves as US citizens on voter registration forms. This is because, under Alaska state law, only American citizens may vote in Alaska in any election — federal, state, or local, and American Samoans are legally US nationals and not citizens. Michael Pese, one of those charged, states, “To me, I’m an American. I was born an American on US soil… American Samoa has been US soil, US jurisdiction, for 125 years. According to the supreme law of the land, that’s my birthright.”

The prosecutions were brought before the Alaska Court of Appeals, raising the questions of mens rea and constitutional citizenship. Mens rea questions whether the state must prove that defendants intended to deceive election officials in order to convict them of election misconduct. The question relating to constitutional citizenship is whether individuals born in American Samoa possess a Fourteenth Amendment entitlement to birthright citizenship. 

The defense is being led by Attorney Neil Weare of Right to Democracy, public defender Matt DiTullio, and groups like the ACLU of Alaska and the Pacific Community of Alaska. They argue that the prosecutions rest on a constitutional misclassification: that American Samoans are citizens under the Fourteenth Amendment and should be recognized as such by law. They further argued that the defendants lacked any intent to mislead election officials, with many believing that they were eligible to vote because they hold US passports, live on US soil, and encountered election materials that used “US Citizen” and “US national” interchangeably. Defense attorneys argue administrative ambiguity within the Alaska Division of Elections, which had not clearly outlined eligibility for US nationals despite widespread confusion and misdirection of state resources towards rare non-citizen voting cases.
The state rejects these assertions. The Alaska Attorney General’s office insists that enforcement is necessary to protect the integrity of elections and uphold statutory citizenship requirements. They argue that the defendants’ lack of US citizenship is an uncontested matter existing under federal law. As of September 2025, there is no final verdict or dismissal yet in the criminal prosecutions of American Samoan US nationals in Alaska. Whatever the final decision, this case will set a legal precedent for citizenship status within American Samoa.