Answers to some of the most frequently asked questions about the myths and realities behind issues of citizenship for people born in American Samoa.
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- Why are people born in American Samoa not recognized as U.S. citizens?
- What are the consequences of American Samoans being denied recognition as citizens?
- What is the relationship between citizenship and issues relating to land and culture in American Samoa?
- I’ve heard that constitutional provisions like the Equal Protection Clause and the Due Process Clause don’t apply in American Samoa, and that is what allows for American Samoa’s land laws. Is that true?
- I’ve heard that the traditional leaders of American Samoa have always been against U.S. citizenship. Is that correct?
- What is the relationship between citizenship and American Samoa’s future political status?
- Why not address the issue of citizenship through Congress rather than through the courts?
- What did the Framers of the Citizenship Clause say about citizenship in U.S. territories?
- What has the Supreme Court said in cases dealing with the Citizenship Clause?
- What have legal experts said about the geographic scope of the Constitution’s guarantee of birthright citizenship?
- What has the Supreme Court said recently about the Insular Cases and U.S. territories?
When American Samoa's traditional leaders signed the Deeds of Cession in 1900 and 1904 transferring sovereignty to the United States, they believed that in return they would be recognized as U.S. citizens, while continuing to ensure protection of their land and culture.
However, without any basis in the law, and contrary to the desires of American Samoa's leaders, officials at the U.S. State Department and the U.S. Navy refused to recognize American Samoans as citizens, labeling them instead with the inferior status of "non-citizen national." It was not until 1940 though that Congress passed a statute formally denying American Samoans recognition as U.S. citizens.
Today, a child born in American Samoa is only recognized as a U.S. citizen if he or she has a parent who is recognized as a U.S. citizen - all other children born in American Samoa continue to be labeled as "non-citizen nationals."
Based on a discriminatory federal law, people born in American Samoa are labeled with the inferior status "non-citizen national" rather than recognized as citizens as required by the U.S. Constitution. The affects of the distinction between citizen and non-citizen national are most strongly felt by American Samoans who have moved stateside for educational and economic opportunities.
"Non-citizen nationals" living in the states are unable to vote in federal, state, and local elections unless they first naturalize - which costs $700, requires they pass a history exam, and is a process that can take a year or more. This is like a poll tax and literacy test all rolled into one.
"Non-citizen nationals" are also denied many job opportunities, including being barred from serving as officers in the U.S. military. Many states require citizenship to serve as police officers, firefighters, and other good-paying state jobs. Some American Samoan Veterans are even denied the right to bear arms as a civilian.
Many state laws actually treat "non-citizen nationals" worse off than they treat foreign nationals with legal permanent residence, providing more rights and opportunities to these foreign nationals than American Samoans enjoy as U.S. nationals.
Federal law and the laws of each state treat non-citizen nationals different under different circumstances. For more information on the consequences of this confusing patchwork of laws, read this amicus brief filed by the Hon. David Cohen, former Deputy Assistant Secretary of Interior for Insular Affairs, in support of recognizing people born in American Samoa as U.S. citizens.
What is the relationship between citizenship and issues relating to land and culture in American Samoa?
The legal argument that the U.S. Constitution prohibits the federal government from denying the birthright citizenship of people born in American Samoa is separate and distinct from legal issues relating to the constitutionality of American Samoa’s communal land and title systems.
In a 1980 decision, Craddick v. Territorial Registrar, federal judges sitting by designation on the High Court of American Samoa held that American Samoa’s land laws survived constitutional scrutiny based on “a compelling state interest in preserving the lands of American Samoa for Samoans and in preserving the Fa’a Samoa, or Samoan culture.” 1 Am Samoa 2d 11, 12 (1980), available here. Nowhere in the Court’s analysis did the issue of citizenship or non-citizen national status come into consideration.
Federal courts have upheld similar laws in the U.S. territory of the Northern Mariana Islands, where people are recognized as U.S. citizens at birth.
To the extent there are any unresolved questions about the constitutionality of land ownership restrictions in U.S. territories, these questions are separate from whether people born in America Samoa are recognized as citizens.
I’ve heard that constitutional provisions like the Equal Protection Clause and the Due Process Clause don’t apply in American Samoa, and that is what allows for American Samoa’s land laws. Is that true?
No. The High Court of American Samoa has long recognized that “the constitutional guarantees of due process and equal protection are fundamental rights which do apply in the Territory of American Samoa.” 1 Am Samoa 2d 11, 12 (1980), available here. Nonetheless, in Craddick v. Territorial Registrar, the High Court held that American Samoa’s communal land laws did not violate these constitutional protections, because of the “compelling historical and continuing interest in preserving the land and culture of the Samoan people.” Id. at 14.
I’ve heard that the traditional leaders of American Samoa have always been against U.S. citizenship. Is that correct?
No. On April 17, 1900, when the American flag was raised over Pago Pago harbor, American Samoa’s traditional leaders believed they had become American citizens. And throughout the 1920s, 1930s, and 1940s, American Samoa’s traditional leaders repeatedly petitioned Congress for full U.S. citizenship. Indeed, had it not been for opposition from the U.S. Navy at the time, it is likely that the issue of citizenship would have been resolved long ago. During the 1930s, the U.S. Senate voted unanimously on two separate occasions to recognize American Samoans as citizens while continuing to preserve American Samoa’s land and title systems, only to see the legislation fail in the House due to Navy opposition.
American Samoan Attorney Charles Ala'ilima has written more extensively abut this history here.
And should the issue of citizenship be put up for a vote?
The question of citizenship is straightforwards: So long as American Samoa is part of the United States, do people born in American Samoa have an individual right under the U.S. Constitution to be recognized as citizens? The Constitution’s Citizenship Clause provides a clear and definitive answer to this question, and one that is not subject to a vote: “All persons born . . . in the United States, . . . are citizens of the United States.” Answering the question of citizenship under the U.S. flag will not answer any questions about American Samoa’s future political status -- those are questions that only the people of American Samoa can answer.
A court ruling that Congress cannot deny the birthright citizenship of people born in American Samoa will not change the fact that the future of American Samoa’s political status remains in the hands of the American Samoan people. The islands of American Samoa have been a part of the United States since American Samoa’s traditional leaders gave them by Deeds of Cession more than a century ago. Unless and until the American Samoan people decide to change their political status, the question of citizenship is determined by the U.S. Constitution.
Congressional testimony by Attorney Charles V. Alai’ilima and We the People Project President Neil Weare examining these issues further is available here.
The purpose of the Citizenship Clause was to remove questions about birthright citizenship from the political process. That way, the Constitution would answer those questions once and for all, instead of letting the issue be subject to legislation by Congress, the states, or the territories. Of course, Congress can recognize American Samoans as U.S. citizens by statute, just as it has done for people born in every other U.S. territory. But individual rights like birthright citizenship, freedom of speech, and freedom of religion are guaranteed by the Constitution regardless of whether Congress wants to recognize those rights. Until courts recognize that citizenship in American Samoa is based on the Constitution, the individual rights and privileges of people born in American Samoa will continue to be subject to potential political interference.
Senator Lyman Trumbull, Chairman of the Senate Judiciary Committee during the time the Citizenship Clause was being debated in Congress, explained that “the first section [of the Fourteenth Amendment] refers to persons everywhere, whether in the States or in the Territories or in the District of Columbia.” During debates over a similar citizenship provision in the 1866 Civil Rights Act, House Judiciary Committee Chairman James F. Wilson expressed the understanding that “Every person born within the United States, its Territories, or districts . . . is a natural-born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity.”
Four years after the 1868 ratification of the Fourteenth Amendment, the Supreme Court confirmed in the Slaughterhouse Cases that the Citizenship Clause “put to rest” the notion that “[t]hose . . . who had been born and resided always in the District of Columbia or in the Territories, though within the United States, were not citizens.” Later, in 1898, two years before the first Deeds of Session for American Samoa were signed, the Supreme Court explained in United States v. Wong Kim Ark that the Citizenship Clause “affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country.”
What have legal experts said about the geographic scope of the Constitution’s guarantee of birthright citizenship?
Prominent legal experts from across the ideological spectrum agree that the Constitution’s guarantee of citizenship by birth extends throughout the territorial limits of the United States.
In 2008, former U.S. Solicitor General Ted Olson and Harvard Law Professor Laurence Tribe explained in a joint memo examining the eligibility of John McCain to run for President that “birth on soil that is under the sovereignty of the United States, but not within a State” satisfies the requirement for being a “‘natural born’ citizen,” in light of “the well-established principle that ‘natural born’ citizenship includes birth within the territory and allegiance of the United States.”
In 1995, former U.S. Solicitor General Walter Dellinger wrote that “[t]hroughout this country’s history, the fundamental legal principle governing citizenship has been that birth within the territorial limits of the United States confers United States citizenship.” Former Texas Solicitor General James Ho echoed this view in the Heritage Guide to the Constitution: “Under the longstanding English common-law principle of jus soli, persons born within the territory of the sovereign (other than children of enemy aliens or foreign diplomats) are citizens from birth.”
In 2008, the Supreme Court in Boumediene v. Bush explained that “[i]t may well be that over time the ties between the United States and any of its unincorporated Territories strengthen in ways that are of constitutional significance.” The Court then cited approvingly to Justice William Brennan’s view in an earlier case that directly rejected relying on the Insular Cases to deny constitutional rights in U.S. territories today.
The Supreme Court went on to explain in Boumediene that “[t]he Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply.” The Court expressly rejected the idea that “the political branches have the power to switch the Constitution on or off at will.” It explained that “[t]he test for determining the scope of [a constitutional] provision must not be subject to manipulation by those whose power it is designed to restrain.”