Three American Samoan residents of Utah and a Samoan nonprofit asked the Supreme Court on Wednesday to take up their case challenging the validity of the 100-year-old racist court precedents that continue to deny them equal rights as U.S. citizens.
The case of Fitisemanu v. United States arises from the peculiar relationship between the United States and its five overseas territories: American Samoa, Guam, the Northern Marianas Islands, Puerto Rico and the U.S. Virgin Islands. The 3.6 million residents of these territories owe allegiance to the U.S. government but do not have equal rights under the law.
This denial of equal rights is even more acute for American Samoans. While the residents of Guam, the Northern Marianas Islands, Puerto Rico and the U.S. Virgin Islands are officially U.S. citizens and can access those rights by moving to one of the 50 states or the District of Columbia, American Samoans are categorized as U.S. “nationals.” This means that American Samoans born in American Samoa are not treated as citizens even if they move to a U.S. state.
The plaintiffs allege a series of harms, highlighting the rights denied to American Samoa-born nationals living in the U.S. John Fitisemanu was denied the right to vote. Pale Tuli cannot seek the job he wants, as a police officer. And Rosavita Tuli is unable to sponsor immigrant family members who wish to move to the U.S.
“I was born on U.S. soil, have a U.S. passport, and pay thousands of dollars in taxes each year to the federal government,” Fitisemanu said in a statement. “But based on a discriminatory federal law, I am denied recognition as a U.S. citizen. As a result, I am a citizen of nowhere, unable to vote in state, federal, or even local elections. This isn’t just wrong, it’s unconstitutional.”
The denial of equal rights to territorial residents stems from a series of Supreme Court cases, known as the Insular Cases, that created a legal framework for the United States’ territorial conquests in the Spanish-American War. The court categorized these overseas possessions as “unincorporated territories” not meant for statehood, and it denied equal rights to their residents because they were “savage tribes” and “alien” and “uncivilized race[s]” who were “absolutely unfit to receive” them.
The plaintiffs argue that the original understanding of the 14th Amendment’s Citizenship Clause, which grants birthright citizenship to persons “born or naturalized in the United States, and subject to the jurisdiction thereof,” extended that right to anyone born in U.S.-controlled territories. In making this argument, the petitioners note that birthright citizenship was never questioned directly in the Insular Cases.
This argument was endorsed by Judge Clark Waddoups of the U.S. District Court of Utah in a 2019 decision siding with the American Samoan plaintiffs. That decision found that the legal precedent that mattered in this case was the 1898 decision in United States v. Wong Kim Ark, which affirmed the birthright citizenship of anyone born on U.S. soil, and “did not concern” any of the Insular Case decisions.
But that federal court decision was overturned in 2021 by a panel of judges from the U.S. Court of Appeals for the 10th Circuit who relied solely on the Insular Cases. Though the majority decision from the appeals court noted the “racist” and “disreputable” history of the Insular Cases, it ruled that they applied here and that the U.S. District Court “erred by relying on Wong Kim Ark.” And even though the Insular Cases never touched on birthright citizenship, the court ruled that those cases “can be repurposed.”
The petition in Fitisemanu v. U.S. asks the Supreme Court to revisit and overturn the Insular Cases because the appeals court decision extends them beyond their original context and subject matter while also bringing them into direct conflict with precedents granting birthright citizenship.
The request for the Supreme Court to take up this case comes on the heels of opinions issued by Justices Neil Gorsuch and Sonia Sotomayor last week clearly stating their desire to overturn the Insular Cases.
In a concurring opinion in United States v. Vaello-Madero, released on April 21, Gorsuch said it is “past time to acknowledge the gravity of this error and admit what we know to be true: The Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law.”
Gorsuch cited the appeals court decision in the Fitisemanu case as a major reason why the Supreme Court must revisit the Insular Cases, noting it is among “recent attempts” by lower courts “to repurpose the Insular Cases [by] merely drap[ing] the worst of their logic in new garb.”
In noting her total agreement with Gorsuch’s argument to overturn the Insular Cases, Sotomayor called them “both odious and wrong” in a dissent issued in the Vaello-Madero case.
The Fitisemanu case is opposed by the Department of Justice, which has relied on the Insular Cases in its arguments, and the government of American Samoa, which claims that overturning the Insular Cases would upset the traditional practices of the Samoan people.
Despite a promise to advance racial justice and equality, the Biden administration’s Department of Justice continues to rely on the Insular Cases in arguments before the court. Lawyers for the plaintiffs in the Fitisemanu case and a number of civil rights organizations, including the ACLU, the Hispanic Federation and the NAACP Legal Defense Fund, have called on the administration to stop relying on the Insular Cases in its briefs and arguments in court.
“Who is a U.S. citizen under the Constitution is a fundamental question for our democracy, and one the Citizenship Clause of the Fourteenth Amendment was intended to answer once and for all,” Neil Weare, counsel for Fitisemanu, said in a statement. “That in 2022 there remains uncertainty over whether people born in U.S. territories are ‘born … in the United States’ for purposes of the Citizenship Clause and whether the racist Insular Cases remain good law highlights why the Supreme Court needs to finally answer these questions.”