Court rules that American Samoans are entitled to birthright citizenship

SCREEN CAPTURE / NBC

John Fitisemanu outside a Utah courthouse.

EDITOR'S NOTE: Updated Dec. 14, 10 a.m. to reflect the court's staying of the Dec. 12 ruling.

"All he wants is to have his voice be heard, just like any other American would," said Neil Weare, attorney for John Fitisemanu, who was born in American Samoa.

On Thursday (Dec. 12), American Samoans, long denied birthright citizenship, finally won a court victory in the quest towards equality and representation. But that victory was short-lived because on the following day, the judge who presided over Fitusemanu's and two other Samoan American's lawsuit, stayed his original ruling until an appeal is heard.

Nevertheless, the first thing Fitsemanu did on Friday was to register to vote. Fitisemanu, 56, said he was not surprised or disappointed by the stay and is “just happy things are moving forward.”

“It felt exciting to register,” said Fitisemanu. The plaintiffs, Fitisemanu, Rosavita Tuli and Pale Tuli for years have lived and worked in Utah, which has a large Samoan community.

The lawsuit that brought the ruling didn't originate in the island territory but in the state of Utah where three Samoan American residents filed their claim.

“American Samoans owe permanent allegiance to the United States,” ruled Judge Clark Waddoups in the US District Court for the District of Utah. “They are therefore ‘subject to the jurisdiction’ of the United States.” Since American Samoa is “within the dominion of the United States,” the territory must be considered part of the country, he wrote.

"This court is not imposing 'citizenship by judicial fiat.' The action is required by the mandate of the Fourteenth Amendment as construed and applied by Supreme Court precedent," wrote Waddoups.

The government, Waddoups said, “shall issue new passports to plaintiffs that do not disclaim their U.S. citizenship.”

The Department of Justice, which argued against the lawsuit, did not immediately respond to a request for comment on Friday (Dec. 13).

RELATED: Why the court denied citizeneship to American Samoa

In court papers, the department’s lawyers argued that the Constitution does not require birthright citizenship for anyone born in an unincorporated territory and that “any remedy here must come from Congress, not the federal judiciary.”

"This court is not imposing 'citizenship by judicial fiat.' The action is required by the mandate of the 14th Amendment as construed and applied by Supreme Court precedent," wrote Judge Clark Waddoups in the US District Court for the District of Utah.

"Further, Plaintiffs are American Samoans. They brought this action seeking to realize their rights to citizenship under the 14th Amendment," he added. It's unclear whether Waddoups' order applies to American Samoans beyond Utah.

"It's an overwhelming victory but it's the first step in what will likely be several more steps," said Neil Weare, attorney for the plaintiffs and the president and founder of the non-profit Equally American.

American Samoa, a U.S. territory since 1900, is a cluster of islands 2,600 miles southwest of Hawaii perpetually stuck in a legal loophole. People born in the territory are labeled U.S. nationals. Under that status, they cannot vote, run for office, sponsor family members for immigration to the U.S., apply for certain government jobs, or serve on a jury – despite paying taxes to Uncle Sam. They’re even issued special U.S. passports that say: “This bearer is a United States national and not a United States citizen.”

Residents of other US territories, including Guam and Puerto Rico, are granted birthright citizenship with all the rights granted US citizens -- birthright or naturalized -- except the right to vote for President.

A 2016 case seeking citizenship was rejected based on the racist nature of set of court decisions called the Insular Cases, which gave preference to the territories where majority of its residents were white and referred to the Samoans as "savages."

The precedent set by the Insular Cases coupled with the reluctance of the leadership of America Samoa gave the courts reason enough to deny that claim. 

It is not clear how far-ranging the Utah ruling will apply beyond the state, including for those living in American Samoa.

Resistance will likely come from American Samoan government. Leaders fear residents 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."

This lawsuit raises an interesting -- if applicable -- major question over whether the millions who lived in the Philippines while the country was a US territory for five decades until 1946 would also be able to seek US citizenship, said Sam Erman, an expert in constitutional law and a University of Southern California professor. If the law is applied to this situation, Philippine residents would be 74 years old by now but the ruling could possibly be extended to their children.

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American Samoans fight for U.S. citizenship

COURTESEY EQUALLY AMERICAN

John Fitisemanu wants birthright citizenship for American Samoans.

AMERICAN SAMOANS are trying once again to gain U.S. citizenship -- just like everybody else born on U.S. soil.

A lawsuit filed Tuesday (March 28) against the U.S.  State Department seeks birthright citizenship for residents of American Samoa under the 14th Amendment of the Constitution.

Utah resident John Fitisemanu is the lead plaintiff on the lawsuit filed on behalf of American Samoans in Utah. Born in American Samoa, he has the status of a U.S. national.

He's been rejected for jobs that list U.S. citizenship as a requirement. Prospective employers "need me to show them proof that I am a U.S. citizen, which I am not." Around elections, "I sit quietly at my cubicle, and don't say a word, because I know I can't vote," he said. "It's kind of embarrassing."

In addition to the 50 states, the United States has five territories: Puerto Rico, the U.S. Virgin Islands, Guam, the Northern Mariana Islands, and American Samoa. While none of the five territories have all the rights granted to states, residents of the other four are given U.S. citizenship at birth. American Samoa is the only territory where residents are not automatically granted citizenship.

Like residents of the other four territories, American Samoans pay taxes and are recognized as U.S. nationals. American Samoa also sends a non-voting delegate to the U.S. House of Representatives. However, without full citizenship, they are not permitted to vote, run for political office, apply for certain government jobs, or to sponsor relatives immigrating to the United States. 

Despite their status as U.S. nationals without full privileges of citizenship, the U.S. has no problem accepting them into the military. For their small numbers, the American Samoans have the one of the highest rates of enlistment into the armed forces.

This is Fitisemanu's second attempt to overturn what appears to be an unjust rule.A previous case he led stalled in 2016 when the Supreme Court declined to reconsider a ruling from a lower court in D.C., which found the constitutional guarantee of birthright citizenship didn't apply to American Samoa, and based its ruling on controversial racist legal precedents from the early 20th century after the Spanish-American War the U.S. acquired some former Spanish colonies including Puerto Rico, the U.S. Virgin Islands, Guam and the Philippines.

Known as the "Insular Cases," the Supreme Court distinguished between "incorporated" and "unincorporated" territories. Incorporated territories such as Arizona and New Mexico and mostly settled by white people, were thought destined to be a permanent part of the U.S. Unincorporated territories such as American Samoa, weren't considered candidates for statehood, whose inhabitants were described as "alien races" and "uncivilized," and thus weren't granted full constitutional rights.

RELATED: Why the court ruled against citizenship for American Samoans

President Theodore Roosevelt was even more explicit in praising “the expansion of the peoples of white, or European, blood” into the lands of “mere savages.” It’s worth noting that President Trump has pointed to this period as the era “when we were great, when we were really starting to go robust."

"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 55,000 American Samoans.

"This is the holding pattern we've been in now for over a century," said Sam Erman, an expert in constitutional law and a professor at the University of Southern California. Still, Erman and many legal scholars agree that "American Samoans are clearly citizens under the 14th Amendment."

It didn't help Fitisemanu's earlier case that the local American Samoan government took a nuanced view over the issue, given concern about how aspects of Samoan life and culture "would be jeopardized if subjected to scrutiny under the 14th Amendment," according to court documents filed in 2014 by lawyers representing the government. 

"If someone has a birth certificate showing they were born on U.S. soil, they shouldn't have to jump through any more hoops to be recognized as a U.S. citizen," said Neil Weare, president and founder of nonprofit Equally American, the attorney leading the lawsuit.

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