By Ariel Peterson
WASHINGTON, D.C.—Last month, United States Solicitor General Elizabeth B. Prelogar submitted a brief to the Supreme Court urging the court not to grant certiorari for Fitisemanu v. United States, a case that discusses the right of people born in American Samoa to receive the full benefits of American citizenship.
In 2018, John Fitisemanu, Pale Tuli, Rosavita Tuli, and the Southern Utah Pacific Islander Coalition filed a complaint in federal court in the District of Utah. They claimed that since they were born in American Samoa, a United States territory, they should be granted citizenship at birth in accordance with the Fourteenth Amendment.
American Samoa is the only United States territory that designates people who are born there as “non-citizen nationals.”
This designation means that American Samoans cannot vote in federal, state, or local elections; are barred from certain employment opportunities reserved for United States citizens; are unable to receive IR-5 Parent Visas to allow family members from outside the United States to live with them; and must have Endorsement Code 09 printed on their passports, which bluntly states that “THE BEARER IS A UNITED STATES NATIONAL AND NOT A UNITED STATES CITIZEN.”
The plaintiffs argued that these restrictions contribute to the sense that they “have been subjected to a stamp of inferior status that diminishes their standing in their communities and in our Nation as a whole.”
The Utah district court held with Fitisemanu and his fellow plaintiffs, finding that since American Samoa is “in the United States,” the Fourteenth Amendment applies and, “Persons born in American Samoa are citizens of the United States by virtue of the Citizenship Clause of the Fourteenth Amendment.”
When the defendants—the United States government, including the Secretary of State and American Samoan representative to Congress Aumua Amata—appealed, the Court of Appeals for the Tenth Circuit, which has jurisdiction in Utah, reversed the district court’s decision. Writing for the court, Judge Lucero opined that the citizenship question was not up to the district court because “Congress plays the preeminent role in the determination of citizenship in unincorporated territorial lands” and “the courts play but a subordinate role in the process.”
Lucero further addressed the complicated matter of whether American Samoans beyond the plaintiffs actually desire American citizenship at birth, writing, “It is evident that the wishes of the territory’s democratically elected representatives, who remind us that their people have not formed a consensus in favor of American citizenship and urge us not to impose citizenship on an unwilling people from a courthouse thousands of miles away, have not been taken into adequate consideration.”
Indeed, the brief submitted to the Supreme Court by Amata and government of American Samoa responding to the plaintiffs’ petition for writ of certiorari explains that “the American Samoan people have preserved fa’a Samoa—the traditional Samoan way of life” and that the plaintiffs’ “contrary view would threaten fa’a Samoa, upend well over a hundred years of settled law and practice, and deprive the American Samoan people of their basic right to determine their own status through the democratic process.”
However, the three Tenth Circuit judges were divided on the Fitisemanu case, partly because of Lucero’s reliance on precedent set by the Insular Cases.
The Insular Cases were a series of Supreme Court decisions from the turn of the 20th century concerning the territories the United States acquired following the Spanish-American War. These cases centered around the question of whether the United States Constitution “followed the flag,” and they largely determined that it did not.
