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American Samoa: Court Rules Individuals Born in American Samoa Enjoy Birthright United States Citizenship

(Feb. 24, 2020) In December 2019, the United States District Court for the District of Utah issued a memorandum decision finding that individuals born in American Samoa enjoy birthright United States citizenship under Section 1 of the Fourteenth Amendment. (Fitisemanu v. United States, No. 18-36 (D. Utah Dec. 12, 2019) (Fitisemanu) (order granting summary judgment).)

Case History

In addition to the 50 states and the District of Columbia, the United States possesses five inhabited territories: Puerto Rico, Guam, American Samoa, the U.S. Virgin Islands, and the Northern Mariana Islands. Unless otherwise provided in other federal statutes, 8 USC § 1408(1) designates persons “born in an outlying possession of the United States” as nationals, not U.S. citizens. As noncitizen nationals, American Samoans generally do not enjoy several rights and privileges held by U.S. citizens, including voting, running for elective federal or state office, and serving on federal and state juries. (Fitisemanu at 7.) In a series of treaties and agreements entered into during the early 20th century, the islands of American Samoa granted sovereignty to the United States, promising to “obey and owe allegiance to the Government of the United States of America.” (Cession of Tutuila and Aunu’u, Apr. 17, 1900, reprinted in Am. Samoa Code Ann. 2, 3 (2017); see also Cession of Manu’a Islands, July 16, 1904, reprinted in Am. Samoa Code Ann. 4 (2017).)

In 2018, the Fitisemanu plaintiffs—three individuals and a nonprofit corporation headquartered in Utah—filed suit against the United States. Shortly after commencing the suit, the plaintiffs filed a motion for summary judgment. Among other requests for relief, the plaintiffs sought a declaratory judgment that “persons born in American Samoa are citizens of the United States by virtue of the Citizenship Clause of the Fourteenth Amendment and that 8 USC § 1408(1) is unconstitutional.” (Fitisemanu at 4.) The United States filed a motion to dismiss for failure to state a claim upon which relief could be granted; simultaneously, the American Samoa government and its congressional delegate filed a motion to intervene. After the District Court granted permissive intervention, the intervenors argued against imposing U.S. citizenship on American Samoa. (Fitisemanu at 5.)

English Common Law Precedent

The principle of birthright citizenship in America is rooted in the 17th century English decision Calvin’s Case, 77 Eng. Rep. 377 (K.B. 1608). Calvin’s Case established a two-part test to determine whether an individual was subject to English rule: (1) birth within the monarch’s territory and (2) allegiance to the monarch. (Calvin’s Case at 382.) This precedent remained in force through the pre-revolution colonial period, when it was accepted that children born to English emigrants in the colonies were “natural born British subjects.” (Inglis v. Trustees of Sailor’s Snug Harbor, 28 U.S. 99, 120 (1830).)

Birthright Citizenship Under the Fourteenth Amendment

After the Civil War the Thirteenth Amendment abolished slavery, but questions of national citizenship, as well as the citizenship of former slaves and their offspring, remained unanswered. In response, Congress passed the Civil Rights Act of 1866 over a presidential veto (Cong. Globe, 39th Cong. 1st Sess. 1861 (1886)), and the Fourteenth Amendment was adopted on July 9, 1868. Section 1 of that Amendment provides, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

A relevant case addressing the Fourteenth Amendment’s reach analyzed whether a child born in California to parents of Chinese descent, who were at all relevant times subjects of the Chinese emperor, is entitled to United States citizenship at the time of his or her birth. (United States v. Wong Kim Ark, 169 U.S. 649 (1898).) Relying in large part on Calvin’s Case, the Supreme Court held that the Fourteenth Amendment grants citizenship to all children born on American soil to foreign parents, with some limited exceptions. (Wong Kim Ark, 169 U.S. at 693.)

Present Decision

On the basis of the historical context outlined above, the government conceded that persons born in American Samoa are subject to the federal government’s jurisdiction. In other words, the sole question before the Court was “whether American Samoa is ‘in the United States’ for purposes of the Fourteenth Amendment.” (Fitisemanu at 35.) Relying on Wong Kim Ark, and viewing “the Fourteenth Amendment in light of the English common-law, [the Court held] that American Samoa is within the dominion of the United States because it is a territory under the full sovereignty of the United States… .” (Fitisemanu at 58.) The Court further held, “Plaintiffs, having been born in the United States, and owing allegiance to the United States, are citizens by virtue of the Citizenship Clause of the Fourteenth Amendment.” (Fitisemanu at 67.)

In reaching its ruling, the Court rejected the government’s reliance on the case Downes v. Bidwell, 182 U.S. 244 (1901). The Supreme Court in Downes held that Puerto Rico was not part of the United States for purposes of Article 1, Section 8 of the Constitution, which covers tax uniformity. The District Court concluded that because Downes dealt with a separate provision of the Constitution, the Downes holding was irrelevant to the questions before it. (Fitisemanu at 66; see also Downes, 182 U.S. at 292 (White, J. concurring) (“In the case of the territories, as in every other instance, when a provision of the Constitution is invoked, the question which arises is, not whether the Constitution is operative … but whether the provision relied on is applicable.”).)

Future Outlook

The United States has appealed the District Court’s ruling, which is currently pending review by the 10th Circuit Court of Appeals. The District Court issued a stay of its ruling pending the resolution of the case on appeal. (Fitisemanu v. United States, No. 18-36 (D. Utah Dec. 13, 2019) (order staying ruling pending appeal).)