(CN) — The seven islands that make up American Samoa have been considered U.S. territory for over a century, but its people are not birthright citizens of the United States, a split panel of the 10th Circuit ruled Tuesday, reversing a lower court.
"We have grave misgivings about forcing the American Samoan people to become American citizens against their wishes," Senior U.S. Circuit Judge Carlos Lucero wrote in the lead opinion. "They are fully capable of making their own decision on this issue, and current law authorizes each individual Samoan to seek American citizenship should it be desired."
The 39-page ruling emphasizes that Congress, as opposed to the courts, has extended birthright citizenship across U.S. territories since the Spanish-American War of 1898. Lucero, in addition to consulting the law, drew heavily from the history and culture of American Samoa to decide the case.
American Samoa has been a U.S. territory since 1900 and has the highest rate of military service in the U.S. Those born in the cluster of Polynesian islands 2,500 miles southwest of Hawaii, however, are American nationals — not citizens. They cannot vote or run for office in the incorporated U.S. or hold certain government jobs.
The government of American Samoa, which intervened in the case to oppose birthright citizenship, argued that this arrangement preserves the islanders’ traditional way of life, or fa’a Samoa, including communal property ownership and the limiting of property ownership to individuals who are at least 50% Samoan. Both of these practices would be impossible to protect under the U.S. Constitution.
Unique from the people of other U.S. territories — Guam, the Commonwealth of the Northern Mariana Islands, Puerto Rico and the Virgin Islands — American Samoas were never considered U.S. citizens at birth. That is until the George W. Bush-appointed U.S. District Judge Clark Waddoups made history on Dec. 12, 2019, by ruling American Samoans should no longer be denied birthright citizenship.
John Fitisemanu was one of three plaintiffs who brought the case in Utah a year earlier.
Born in American Samoa, on U.S. soil in 1965, Fitisemanu built his life in Utah and works in the health care industry. He pays federal, state and local taxes and sent his four children to Utah public schools. He holds a U.S. passport that is imprinted with a code that labels him as a noncitizen national.
This designation prevented Fitisemanu from applying for government jobs that required citizenship status. Noncitizen nationals like Fitisemanu cannot vote or run for elected office unless they become a citizen through the naturalization process. Co-plaintiffs Rosavita Tuli and Pale Tuli noted in the complaint that they lost out on job opportunities because “many private-sector employers are reluctant to hire ‘non-citizen nationals.’”
Like the government of American Samoa, the U.S. government opposed the trio's request for birthright citizenship under the 14th Amendment.
“No circumstance is more persuasive to me than the preference against citizenship expressed by the American Samoan people through their elected representatives,” wrote Lucero, who went on to quote from "The Federalist Papers."
“The fabric of American empire ought to rest on the solid basis of the consent of the People," he said, in the words of Alexander Hamilton.
"Respect for this principle should be at its zenith in the case of territories born from American imperial expansion, a project that was always in significant tension with our aspirations toward representative democracy," Lucero added.
The judge emphasized his sympathy for Fitisemanu and the other plaintiffs’ desire for citizenship but said "to accept their position would be to impose citizenship over the expressed preferences of the American Samoan people."
"Such a result would be anomalous to our history and our understanding of the Constitution," the Clinton appointee wrote.
U.S. Circuit Judge Robert Bacharach rejected that assertion in a 55-page dissent.
"From colonial days, Americans understood that citizenship extended to everyone within the sovereign’s dominion," the Obama appointee wrote. "So those in territories like American Samoa enjoy birthright citizenship, just like anyone else born in our country. The plaintiffs are thus U.S. citizens, and I would affirm."
Tuesday's decision comes over a year after the Denver-based 10th Circuit heard oral arguments. Chief U.S. Circuit Judge Timothy Tymkovich concurred with Lucero but warned in a separate 4-page opinion about the problem with placing too much weight on intertextual evidence.
“Although I agree with much of Judge Lucero’s reasoning endorsing consideration of the wishes of the American Samoan people, I would leave that consideration to the political branches and not to our court,” Tymkovich, a George W. Bush appointee, wrote.
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96 hours of work April 15, 2024