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Federal Government Brief in Samoa Citizenship Case

On August 11, the federal government filed this brief in Tuaua v U.S.A., in the U.S. Court of Appeals, D.C. The issue is whether the Constitution requires that persons born in U.S. possessions be considered citizens. Persons born in American Samoa are considered U.S. nationals, not citizens. The government interprets the Fourteenth Amendment to mean that only individuals born in a state are constitutionally entitled to be considered U.S. citizens.

The Fourteenth Amendment says, “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.” The plaintiffs argue that persons born in American Samoa are citizens. The federal government disagrees. By statute, Congress has said that persons born in all U.S. possessions except American Samoa are citizens, but Congress has never taken that step for American Samoa.

Under the federal government’s theory, even persons born in the District of Columbia aren’t constitutionally required to be recognized as citizens.

The plaintiffs’ reply brief is due September 8.

7 Responses

  1. Alabama Independent

    Good point about D.C. births. But you can be sure the Courts will argue that the wording, “born in the United States…” includes those born in D.C.

  2. Will Fenwick

    You have misinterpreted the theory which has stood since the insular cases of the 1800′s, and American Samoa is not the only possession in which a person is born a non-citizen national and the federal government people born in the district of columbia have always been citizens of the united states.
    The key distinction is between incorporated and unincorporated territory. The 50 states, the District of Columbia, and the Territory of Palmyra Atoll are all incorporated, meaning that the constitution applied. All of the other possesions / territories of the United States are unincorporated. While the Northern Marianas, Virgin Islands, Puerto Rico, and Guam are unincorporated, they are also considered to be “organized” and their inhabitants are citizens at birth due to organic acts passed by congress. Prior to the passage of these acts, the people born on those possessions were also non-citizen nationals of the United States. Rather than holding American citizenship, they held citizenship of the territory they were born in.
    American Samoa, Wake Island, Midway Island, Johnston Atoll, Navassa, Jarvis Island, Kingman Reef, Baker Island, Howland Island, Seranilla Bank, and Bajo Nuevo Bank are all considered to be “unorganized” and people born on them are non-citizen nationals. While the populations of the other “unorganized” territories aside from American Samoa are either tiny or nonexistent, it is not inconceivable that people have been born to non-citizens on some of them. For instance Wake Island held thousands of Vietnamese refugees for a few years in the 1970′s.

    • According to Neil Weare, an expert on the subject, the language of the 14th amendment would allow the government to treat incorporated territories and unincorporated territories the same. I am no expert, but it seems from the language of the 14th amendment, there is no constitutional protection for either incorporated or unincorporated territories.

      • Jim Riley

        When you say “government”, you presumably mean “Congress”, and when you say “allow” you appear to indicate that is discretionary, but not required under the Constitution.

        The brief notes that the Constitution does not restrict voting to US citizens, and of course, many states have in the past permitted resident aliens (or some subset of them, such as those intending to become US citizens) to vote.

        California could permit US nationals resident in California to vote.

    • Sounds like a good opportunity to repudiate and overturn the Insular Cases and the incorporate/unincorporated distinction altogether. “The Constitution doesn’t apply to these territories.” was born of blatant racism in the first place, and has little to no basis in the Cons’t itself. The very idea of the US government being able to exercise authority unbound by the Constitution is an anathema to constitutional rule of law, and was only invented by the Supreme Court when the US was faced with governing populations of non-white majorities during a time of then-new American imperialism and widespread white supremacism. I hope the Am. Samoans win their case.

  3. Demo Rep

    So the many folks who were born having ALLEGIANCE to the USA regime in the old territories in 1789 to 1959 (via their fathers) were NOT citizens of the USA ???

    Good luck in getting that MORON idea past 5 of 9 SCOTUS folks.

    History notes – the surviving American Indian tribal members were naturalized in 1924 and 1940 Acts of Congress.

    The Insular cases were part of the post Civil War Plessy era of racial stuff — aka white supremacy over non-white folks (black, brown, yellow, red, etc.)

    See WW I – the white killer regimes in Europe killing each other off.

  4. Demo Rep

    55,519 folks on A.S. in the 2010 Census.

    NOT quite enough to be a State of the Union — with 1 USA Rep, 2 USA Senators, and 3 E.C. votes ??? Duh.

    How about a merger with Hawaii – to be renamed Pacifica ???

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