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A look at the status of Fitisemanu v. U.S. — the birthright citizenship case

Pago Pago, AMERICAN SAMOA — In April, John Fitisemanu the lead plaintiff in Fitisemanu v. U.S petitioned the U.S. Supreme Court to take up his case, recognize him as a U.S. citizen, and overrule the Insular Cases — after a divided panel of the Tenth Circuit Court denied that the Fourteenth Amendment’s guarantee of birthright citizenship applies to people born in U.S. territories, based on the Insular Cases.

And as the U.S. Supreme Court considers whether or not to take up the case — eight new amicus (“friends of the court”) briefs were filed over the past week, two of which are of specific interest in American Samoa — the brief by elected officials in other territories; and the Samoan Federation brief.

The American Samoan government and American Samoa’s Delegate early on joined the federal defendants in the case arguing that the question of citizenship in the territories is up to Congress with many American Samoans fearing a threat to the culture and most particularly that the land laws and perhaps even the composition of the Senate would be threatened and declared unconstitutional by assuming birthright citizenship.

The central question in the Fitisemanu suit is whether US territories like American Samoa are “in the United States” for purposes of the Citizenship Clause.

While the Supreme Court has not squarely resolved that question, in late April in U.S. v. Vaello Madero the Supreme Court acknowledged in its opening sentence that “The United States includes five Territories: American Samoa, Guam, the Northern Mariana Islands, the US Virgin Islands, and Puerto Rico.”

This case concerns a claim for Supplemental Security Income benefits by a resident of Puerto. Rico

THE INSULAR CASES

“The Insular Case decisions created a doctrine allowing for the United States to acquire and govern colonial territories. The most important doctrinal lines from the Insular Cases include the idea of incorporated and unincorporated territories and the overarching principle that the Constitution does not inherently extend to unincorporated territories.” [Wikipedia]

In a September 2021 filing, the Biden-Harris Department of Justice argued against birthright citizenship for people born in U.S. territories by relying heavily on the Insular Cases, which leading legal scholars like Professor Sanford Levinson have called “central documents in the history of American racism.”

CURRENT AND FORMER TERRITORIAL OFFICIALS BRIEF

Meanwhile, current and former elected officials from Puerto Rico, Guam, the US Virgin Islands, and the Northern Mariana Islands have now joined the plaintiffs as “friends of the court” arguing in the case that the Insular Cases should be rejected and people born in US territories recognized as birthright citizens.

They argue that it is time for the Supreme Court to overrule the Insular Cases and recognize that those born in U.S. territories have a constitutional right to be recognized as U.S. citizens. They also address concerns raised by elected officials in American Samoa, demonstrating based on the experiences of each of their territories that recognition of citizenship does not threaten self-determination or the protection of land and culture.

This puts American Samoa in the unenviable position of championing what its territorial peers deem as inherently racist decisions.

Link to Current and Former Territorial Officials Brief

SAMOAN FEDERATION OF AMERICA BRIEF

The Samoan Federation of America – a Samoan community organization in the U.S. mainland, and a plaintiff in a similar prior lawsuit – is calling on the Supreme Court to recognize people born in American Samoa as U.S. citizens in order to bring an end to what they characterize as harms American Samoans face as a result of the century-long imposition of non-citizen U.S. national status by the U.S. government.

 “As a result of a long history of discrimination by the federal government, American Samoans are citizens of nowhere even as they have the highest rate of military service of any American community. This isn’t just un-American, it’s unconstitutional,” said Michelle Mataese, president of the Samoan Federation.

Link to Samoan Federation of America Brief

TIMELINE

The Biden-Harris Administration is set to respond to the Fitisemanu petition on June 30, 2022. Members of Congress and prominent civil rights organizations have called on the Biden-Harris Justice Department to condemn the Insular Cases. The U.S. House of Representatives is also considering a House Resolution condemning the Insular Cases, holding the first-ever congressional hearing on the Insular Cases last year. 

Other groups filing Amicus Briefs in the past week in the support of the plaintiffs include: Citizenship scholars, Constitutional law and legal history scholars, Descendants of Dred Scott and Isabel Gonzalez, former Territorial Judges, Civil Rights organizations, and the Virgin Islands Bar Association.

The U.S., and ASG and the Congresswoman have until June 30 to file a reply.

The Supreme Court is expected to consider whether to grant review of Fitisemanu v United States later this year.

(Sources: original documents, Equally American.org press release, SN archives)