Territorial Birthright Citizenship Lawsuit Receives Amicus Support

Two Groups of Prominent Academics and the Samoan Federation of America File Amicus Briefs

A federal lawsuit seeking recognition that the Constitution’s guarantee of birthright citizenship applies in states and territories alike has received additional support in the form of three amicus briefs filed on behalf of two groups of prominent academics and the Samoan Federation of America. The plaintiffs in Fitisemanu v. United States – passport-holding, tax-paying Americans living in Utah who were born in American Samoa – are denied recognition as U.S. citizens under a discriminatory federal law that labels them as “nationals, but not citizens” of the United States.

“We are very pleased to receive powerful support from leading academics and the Samoan Federation of America as we work to end the second-class status of Americans living or born in U.S. territories,” said Neil Weare, President and Founder of Equally American, a non-profit organization that advocates for equality and civil rights on behalf of those living or born in U.S. territories. Equally American, along with attorneys at Gibson, Dunn & Crutcher, LLP and American Samoan attorney Charles V. Ala’ilima, represents the plaintiffs in Fitisemanu v. United States.

Samoan Federation of America Brief

On April 20th, the Samoan Federation of America, Inc., filed an amicus brief in support of Fitisemanu v. United States. The brief demonstrates how American Samoans correctly understood that when they transferred sovereignty to the United States in 1900 they should be recognized as U.S. citizens. It also shows how the desires of American Samoans to be recognized as citizens from 1900 to the 1960s were consistently thwarted by racial animus towards American Samoans and the native inhabitants of other U.S. territories. The brief also includes an appendix of nearly 500 pages of historical materials relating to citizenship and American Samoa.

“American Samoa’s leaders were right in 1900 that so long as the U.S. flag flies over American Samoa, American Samoans have a right to be recognized as U.S. citizens,” said Chief Loa Pele Faletogo, President of the Samoan Federation of America. “The impact of being labeled with the second class status of ‘non-citizen national’ falls hardest on American Samoans living throughout the 50 states, a population which now exceeds the number of American Samoans actually living in American Samoa. I am hopeful that after nearly 120 years, the United States will finally recognize that American Samoans have a right to be treated as equals and not labeled as second-class Americans.”

Citizenship Scholars Brief

Earlier this month, a group of fifteen prominent scholars of law, history, and political science who are among the leading national experts of the foundations of citizenship in the United States filed an amicus brief in support Fitisemanu v. United States. They argue that the text and history of the Citizenship Clause of the Fourteenth Amendment unequivocally support recognition of birthright citizenship in states and territories alike. The group of scholars is notable for including academics who range across the ideological spectrum, demonstrating the broad academic consensus that has developed with respect to these issues.

“The Constitution’s guarantee of birthright citizenship was clearly intended to apply throughout the United States, whether someone was born in a state, territory, or the District of Columbia,” said Sam Erman, a Professor of Law at USC’s Gould School of Law, one of the amici joining the brief.  “The only exception to this rule in American history was the Supreme Court’s infamous decision in Dred Scott, denying recognition of citizenship to African Americans. It is important that we don’t repeat that mistake again.”

Insular Cases Scholars Brief

A group of leading scholars of constitutional law and legal history who are national experts on the Insular Cases filed an amicus brief earlier this month in support of neither party in Fitisemanu v. United States. The brief argues powerfully that courts should not rely on the Insular Cases when interpreting the application of the Citizenship Clause in U.S. territories today, as the D.C. Circuit had done in an earlier case. The Insular Cases are a series of controversial Supreme Court decisions that have long been criticized as establishing a racially-motivated doctrine of “separate and unequal” status for residents of U.S. territories. Amici include academics from across the ideological spectrum, reflecting the broad academic criticism the Insular Cases have received.

“The Insular Cases are often misunderstood and misapplied to answer all manner of constitutional issues involving U.S. territories,” said Christina Duffy Ponsa-Kraus, a Professor of Law at Columbia Law School, one of the amici joining the brief. “On their face the Insular Cases did not answer the question of citizenship in U.S. territories. And given their sordid history, the Supreme Court is right to have cautioned against expanding their logic to new constitutional questions facing residents of U.S. territories today.”

All the filings in Fitisemanu v. United States can be found here.

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