Article, 1021 UTBJ, Vol. 34, No. 5. 22

Authorby Brian K. Davis
PositionVol. 34 5 Pg. 22

Article, American Samoa and The Weight of Citizenship

Vol. 34 No. 5 Pg. 22

Utah Bar Journal

October, 2021

September, 2021

by Brian K. Davis

Jus soli (right of the soil), otherwise known as birthright citizenship, is a right nearly all Americans recognize and presume to be true for any person born on American soil. But for the nearly 55,000 residents of American Samoa, a U.S. territory in the South Pacific, this is not the case. Indigenous people born in American Samoa are considered U.S. nationals, not citizens. 8 U.S.C. § 1408. The American Samoan Government (ASG) prefers keeping national status believing citizenship would destroy Fa'a Samoa (the Samoan Way). Line-Noue Memea Kruse, The Pacific Insular Case Of American Samoa 79 (2018). Fa'a Samoa consists of two main pillars: (1) the communal land system; and (2) the matai title system. "Communal lands [are] identified.. .as specific tracts of large, medium, and small lands collectively owned and controlled by the aiga (family)...." Id. at 8. The matai title system is a chiefly title bestowed upon one person to "exercise control over family communal lands.. .and command the decision-making process of the other family members." Id. ASG thinks citizenship would violate Fa'a Samoa by subjecting the territory to the American land system thereby terminating the communal land system and weakening their Samoan identity. Id. at 79· ASG is therefore happy to maintain the status quo, but individual American Samoans do not always share that perspective.

Three American Samoans, presently living in Utah, challenged their classification as nationals in the federal Tenth Circuit. Fitisemanu v. United States, 426 F. Supp. 3d 1155, 1157-58, 1160 (D. Utah 2019), rev'd, 1 F.4th 862 (10th Cir. 2021). They contend, that as nationals, they are an inferior class who are consequently "denied the right to vote, the right to run for elective federal [or] state office, and the right to serve on federal and state juries." Id. at 1160; see also Kruse, supra, at 79-80. In other words, the plaintiffs' ability to pursue the American dream and be recognized as Americans is being handicapped by their legal status even though they were born under the American flag. The plaintiffs, therefore, asked the Tenth Circuit to apply jus soli to American Samoa, making the island's residents, and accordingly the plaintiffs, citizens instead o f nationals. The federal government and ASG, however, assert that only Congress may bestow citizenship upon the people of American Samoa and, more importantly, that citizenship would violate American Samoan sovereignty and jeopardize Fa'a Samoa. See Fitisemanu, 426 F Supp. 3d at 1158, 1176-78, 1196.

The federal District Court of Utah agreed with the plaintiffs, holding Wong Kim Ark applied the Citizenship Clause of the Fourteenth Amendment to the people of American Samoa. Id. at 1157-58, 1197. The Tenth Circuit Court of Appeals reversed the district court, finding the Insular Cases to be the more compelling analysis. Fitisemanu v. United States, 1 F.4th 862, 865, 869 (10th Cir. 2021). Thus, the ultimate question is whether the Citizenship Clause of the Fourteenth Amendment and its progeny apply to American Samoa or whether the Insular Cases decision circumvents the Citizenship Clause's application. The answer for now appears to be that citizenship does not extend to American Samoa and only an act of Congress will truly resolve the issue.

The Beginnings of Citizenship

The terms "citizen of the United States" and "natural-born citizen" are used in the Constitution but are not defined. United States v. Wong Kim Ark, 169 U.S. 649, 654 (1898) (quotation marks omitted). Prior to the Fourteenth Amendment, the Supreme Court consistently relied on English common law in holding white persons were afforded birthright citizenship. See id. at 674-75. But the Court held in the infamous Dred Scott case that free black men were not afforded citizenship under the Constitution. Wong Kim Ark, 169 U.S. at 676. The Fourteenth Amendment sought to rectify this putrid decision and "put it beyond doubt that all blacks, as well as whites, born.. .within the jurisdiction of the United States, are citizens of the United States." Id. Congress and the States thus ratified: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States...." U.S. Const, amend. XIV, § 1. Since its ratification, the Supreme Court has interpreted the Citizenship Clause in three cases, all of which occurred before the turn of the 20th Century.

Establishing National Citizenship

Slaughter-House Cases was the seminal decision for interpreting the Citizenship Clause and concerned a state's statute on the slaughter of animals and whether an exclusive privilege could be granted to any of its citizens. Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 57-66 (1873). The Court framed the issue as defining the term "citizenship," noting that before the Fourteenth Amendment "[n]o such definition was previously found in the Constitution." Id. at 72. This led some scholars to believe no man was a citizen of the United States, except as he was a citizen of one of the States composing the Union. Those, therefore, who had been born and resided always in the District of Columbia or in the Territories, though within the United States, were not citizens.


The Fourteenth Amendment eliminated all doubt by declaring "that persons may be citizens of the United States without regard to their citizenship of a particular State." Id. at 73. A person may therefore be a citizen of both the United States and a State, but "it is only necessary that he should be born or naturalized in the United States to be a citizen of the Union." Id. at 74. Thus, "there is a citizenship of the United States, and a citizenship of a State, which are distinct from each other." Id.

The Slaughter-House Cases Court's interpretation of the Fourteenth Amendment appears to extend citizenship to the territories, including American Samoa. The inclusion of territories in the setup question creates a strong inference that citizens of a territory are also citizens of the Union. The Slaughter-House Cases also explicitly overturned the Dred Scott decision and implied the reestablishment of birthright citizenship. Slaughter-House Cases, 83 U.S. at 73. Hence, if the Fourteenth Amendment includes all territory of the United States, then "it is only necessary" that a person "be born... in the United States to be a citizen of the Union," including those born in American Samoa. See id. at 74.

The Slaughter-House Cases Court, however, did not directly resolve whether citizenship extends to a territory. The Slaughter-House Cases Court's analysis was cast as state versus federal citizenship and never mentions the territories. It could therefore be surmised that the Court left extending citizenship to the territories for another day. Furthermore, the Slaughter-House Cases is persuasive, not controlling, because the question of citizenship was secondary to the issue presented. Finally, the Supreme Court did not contemplate American Samoa's unique territorial status as an unincorporated territory. Kruse, supra, at 76. Before the 20th century, territories acquired by the United States were on a path to statehood. Id. at 23, 66. This policy, however, shifted during the American imperialism phase when the federal government decided to acquire territory but not incorporate it into the United States. The American Samoa territory was therefore not destined for statehood. Id. at 76. The Slaughter-House Cases...

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