(CN) – American Samoa has been a U.S. territory since 1900 and has the highest rate of military service in the U.S. But those born in the cluster of Polynesian islands more than 2,500 miles southwest of Hawaii are American nationals, not citizens, and they cannot vote or run for office in the incorporated U.S. or hold certain government jobs.
On Thursday, a federal judge in Utah ruled that American Samoans should no longer be denied birthright citizenship.
“Persons born in American Samoa are citizens of the United States by virtue of the Citizenship Clause of the Fourteenth Amendment,” U.S. District Judge Clark Waddoups wrote in a 69-page opinion.
Although Waddoups issued a stay of his ruling Friday pending resolution of the case on appeal, the decision was a victory for the plaintiffs – three people born in American Samoa who reside in Utah and the Southern Utah Pacific Islander coalition, which brought the suit in March 2018.
On Friday morning, lead plaintiff John Fitisemanu – an American citizen at last, until the issuance of the stay – registered to vote. 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, although it is imprinted with a code that labels him as a “non-citizen national.”
“Mr. Fitisemanu thinks it is unjust that he does not enjoy the same rights as other Americans. He is distressed when fellow Americans question his ‘choice’ not to vote or assume that he is a foreigner,” the plaintiff’s lawsuit states. “Over the course of his career, Mr. Fitisemanu has been discouraged from applying for certain federal and state jobs that list U.S. citizenship as an eligibility requirement, diminishing his employment opportunities.”
On Friday, Fitisemanu said he was not surprised or disappointed by the stay and is “just happy things are moving forward.”
“It felt exciting to register,” Fitisemanu said.
Waddoups, a George W. Bush appointee, wrote in his ruling Thursday that resolving the case required him to choose between two Supreme Court cases: U.S. v. Wong Kim Ark and Downes v. Bidwell.
The 1898 decision in Wong Kim Ark, which determined the citizenship of a man of Chinese descent who was born in California, held that the Fourteenth Amendment follows an “‘ancient rule of citizenship’ – birth within the dominion and allegiance of the sovereign.”
Beginning in 1901 with Downes, a series of related cases known as the Insular Cases, held that the Constitution does not automatically apply to all places under U.S. control.
Downes, which dealt with whether Puerto Rico was a part of the U.S. for the purposes of the Tax Uniformity Clause in a dispute arising from duties charged on a shipment of oranges, established the doctrine of territorial incorporation. Under that doctrine, the Constitution applies fully only in territories that are “surely destined for statehood” and only in part in unincorporated territories such as American Samoa.
“None of the Insular Cases ever expressly overruled Wong Kim Ark,” Waddoups wrote. “This court declines to assume that Wong Kim Ark was tacitly overruled. Instead, this court, in pursuit of its duty-bound obedience to Supreme Court precedent, harmonizes Wong Kim Ark and the Insular Cases. This court concludes that whether an unincorporated territory is ‘in the United States’ for purposes of the Citizenship Clause is a different question than whether an unincorporated territory is ‘part of the United States’ for purposes of the Uniformity Clause.”
Because Americans Samoans “owe permanent allegiance to the U.S.,” the judge wrote, they are subject to the jurisdiction of the U.S.
“Plaintiffs, having been born in the United States, and owing allegiance to the United States, are citizens by virtue of the Citizenship Clause of the Fourteenth Amendment,” Waddoups added.
The Justice Department did not immediately return a request for comment Friday night.
The American Samoan Government and its U.S. representative filed a motion to intervene in the suit against the plaintiffs.
“The U.S. defendants have expressed no particular interest in protecting American Samoa’s ongoing interest in self-determination, which may conflict with the current role of the United States as the ‘exclusive sovereign over … American Samoa,” the motion states.
In 2015, the D.C. Circuit ruled against a group of American Samoans suing the Obama administration for recognition of their birthright citizenship. The Supreme Court declined to hear the case.