Why the court denied birthright citizenship to American Samoans

A WASHINGTON DC Circuit Court panel ruled unanimously June 5 against citizenship for American Samoans. What is especially surprising, is that the Justice Department under President Obama, is arguing against granting birthright citizenship using outdated racist laws that was used to justify racially segregated schools. The Supreme Court overrode those same -some say "racist" - laws to outlaw segregated schools in the landmark decision Brown v. Board of Education.

Tuaua v. United States is a federal lawsuit brought by Leneuoti Tuaua, the Samoan Federation of America, and others born in American Samoa who believe that so long as American Samoa is a part of the United States, people born in American Samoa have the birthright to U.S. citizenship under the Constitution.

Plaintiffs are represented by Neil Weare, president of We the People Project, a national organization dedicated to achieving equal rights and representation for the nearly 5 million Americans living in U.S. territories and the District of Columbia; Arnold & Porter, LLP, an international law firm; and Charles V. Ala'ilima, a prominent American Samoan attorney.

The lead plaintiff, Tuaua, who resides in California, was denied an opportunity to join a California police agency because he is not a citizen. Currently, the 55,500 or so American Samoans are considered non-citizen nationals, meaning they don’t have voting rights in federal elections and can’t work in government jobs. They can apply for citizenship, but that is a long drawn-out process and there’s no guarantee they’ll be approved.

Despite the double-standard applied to American Samoans'
citizenship claims, enlistment in the U.S. Armed Forces is
among the highest in America.

The U.S. Justice attorneys relied heavily on the controversial Insular Cases as precedent for denial of citizenship to the American Samoans. According to a Mother Jones article:

Justice Henry Brown—famous as the author of Plessy v. Ferguson, which gave the court's blessing to segregation—refers to the inhabitants of the new territories as "savage" and "alien races" in the Insular Cases. Brown contended that Congress would treat the territories well because it was guided by "certain principles of natural justice inherent in the Anglo-Saxon character." His colleague, Justice Edward White, hypothesized in one case that granting citizenship to an "uncivilized race" in a new territory would "inflict grave detriment on the United States" from "the immediate bestowal of citizenship on those absolutely unfit to receive it."

"A lot of people are justifiably embarrassed by the Insular Cases because they really do capture an earlier imperial moment that is saturated in white supremacy," says Sanford Levinson, a constitutional law professor at the University of Texas-Austin School of Law.

In subsequent cases, the courts have seen fit to grant citizenship to the other U.S. territories including Puerto Rico, Guam and the Northern Marianas but denied that same privilege to the American Samoans.

In this day and age and under this administration, it is surprising that the government, which has argued on behalf of immigration reform, would rely on a set of racist laws to justify its current position towards the islanders.

Although the Justice Department is required to defend acts of Congress, the administration can on occasion opt out of defending a law it believes is unconstitutional. (The Obama administration's refusal in 2011 to defend part of the Defense of Marriage Act is one recent example.) The Justice Department declined to comment on the case.

Unfortunately, in the case, the three-judge panel also took into consideration that perhaps the biggest opponents of the case are the Samoans themselves - at least, the Samoan leadership.

“Despite American Samoa’s lengthy relationship with the United States, the American Samoan people have not formed a collective consensus in favor of United States citizenship,” the decision says.

Although American Samoans cannot vote for president, they can vote for their local government officials, who pass local laws and have control over immigration and land ownership in the islands. Here is the crux of the island government's argument, they believe that if full citizenship rights were given to their residents, they would lose autonomy over local laws, which includes a law that allows the land to be communally owned by Samoan families. About 90 percent of American Samoa falls under this status. The land cannot be sold or rented to anyone "whose blood is less than one-half Samoan."

American Samoa's own government sided with the U.S. government, which was a critical factor in the judges' decision. The court held that the American Samoa should have a referendum to decide if the majority of its residents want full birthright citizenship.

Weare says that he will appeal the case to the circuit court's full 11-judge panel and if that request is denied, he is prepared to go to the U.S. Supreme Court.

"American Samoa is the only inhabited US territory whose citizens don't receive birthright citizenship," says Stephen Vladeck, a constitutional law expert from American University's Washington School of Law. "I don't know that the government has a particularly compelling reason other than history and the views and wishes of the American Samoans themselves for why American Samoa should be singled out that way."

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