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American Samoans fighting for US citizenship denied high court audience

The move leaves in tact a series of racist early 20th century decisions called the Insular Cases. 

WASHINGTON (CN) — Turning down an opportunity to review a series of early 20th century rulings widely denounced as racist, the Supreme Court declined Monday to consider whether U.S. citizenship should flow to individuals born in U.S. territories.

The petition came from John Fitisemanu, Pale Tuli and Rosavita Tuli, all tax-paying residents of Utah who were born in American Samoa. They claim the system renders them “second-class” citizens, unable to vote in U.S. elections, run for office, serve on juries or join the military. 

A nonprofit supported the trio's challenge to what they see as harm caused by noncitizen national status. They prevailed at summary judgment before the district court, but a divided panel on the 10th Circuit reversed, sending the question to Washington. 

The group had mounted their initial challenge to a section of the Immigration and Nationality Act that they called unconstitutional under the Citizenship Clause. On appeal, however the 10th Circuit relied on rulings from the early 20th century that are widely considered racist by modern standards. Specifically, the so-called Insular Cases state the Constitution applies in full only to incorporated territories, leaving unincorporated territories without full constitutional rights. 

Fitisemanu and the others directly challenged the Insular Cases in their high court petition

“The choice for this Court, then, is clear: it can either give its sanction to the panel majority’s extension of the Insular Cases, or it can uphold the original meaning of and binding precedent interpreting the Citizenship Clause, and thereby safeguard the right to birthright citizenship for people born in U.S. Territories,” Gibson Dunn attorney Matthew McGill wrote for the American Samoan group. 

Per their custom, the justices did not make any statement in turning down the case. It is just one of several cases that were denied writs of certiorari in a Monday morning order list. The decision comes after some justices signaled an interest in overturning the Insular Cases last term. In a case over social security benefits for residents of Puerto Rico, Justice Neil Gorsuch urged the court to overrule the Insular Cases. 

“The time has come to recognize that the Insular Cases rest on a rotten foundation,” the Trump appointee wrote in a concurring opinion. “And I hope the day comes soon when the Court squarely overrules them.” 

While the petition led by Fitisemanu had support from the American Civil Liberties Union, the Human Rights Campaign and more, it faced notable opposition from the Biden administration. While U.S. Solicitor General Elizabeth Prelogar did not indicate any preference on the fate of the Insular Cases, neither did she make a case for American Samoans gaining citizenship. 

Rather Prelogar cited disagreement in American Samoa about the question of birthright citizenship and said the matter should be left for them to resolve. To wit, the American Samoan Legislature recently passed a unanimous resolution opposing citizenship without their consent. 

“If this Court were now to accept petitioners’ invitation to hold that the Citizenship Clause imposes U.S. citizenship on all persons born in American Samoa, it would eliminate the opportunity for the American Samoan people to consider the issue democratically and to develop a consensus as to its proper resolution,” Prelogar wrote. 

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