Citizenship in U.S. Territories and the Future of the Insular Cases At Stake as Cert.-Stage Briefing Concludes, Conference Set for October 7th

Fitisemanu v. United States Offers Supreme Court Historic Opportunity to Resolve Uncertainty over Questions of Birthright Citizenship in U.S. Territories, Overrule the Insular Cases

The U.S. Supreme Court announced today that on October 7th it will consider whether to take up Fitisemanu v. United States, a case that asks the Court to finally resolve the more than century-old question of whether people born in overseas U.S. territories have a constitutional right to be recognized as citizens of the United States. The Fitisemanu petition offers the Supreme Court a rare opportunity to overrule the Insular Cases, a series of deeply-divided early 1900s decisions that justified denying full constitutional protections to residents of overseas territories based on “differences of race.” Today the Fitisemanu petitioners also filed their reply brief to the Supreme Court, completing briefing at the certiorari stage.

The Fitisemanu petition comes on the heels of Supreme Court Justices Neil Gorsuch and Sonia Sotomayor expressing “hope [that] the Court will soon recognize that the Constitution’s application should never depend on …the misguided framework of the Insular Cases.” Justice Gorsuch declared that the Insular Cases “deserve no place in our law” because they “have no foundation in the Constitution and rest instead on racial stereotype.” Justice Sotomayor emphasized that the Insular Cases “were premised on beliefs both odious and wrong.” 

“I am hopeful that the Supreme Court will finally answer the question whether people born in U.S. territories have a right to citizenship. I was born on U.S. soil like any other American, I should have the same right to citizenship as any other American. The Supreme Court has avoided answering this question for more than a century, that’s long enough,” said John Fitisemanu, lead plaintiff in Fitisemanu v. United States, who was born in American Samoa and now lives in Utah. Because the federal government does not recognize him as a citizen, he is denied the right to vote and excluded from certain jobs. “You would think that in 2022 we would no longer be debating the validity of Supreme Court cases that labeled people like me ‘savages’ and ‘alien races.’”

“For too long there has been uncertainty over whether people born in overseas territories have a constitutional right to be recognized as U.S. citizens, and whether the controversial Insular Cases remain ‘good law,’” said Neil Weare, President and Founder of Equally American, a nonprofit that advocates for equal rights in U.S. territories. Equally American represents the Fitisemanu plaintiffs along with attorneys at Gibson, Dunn, & Crutcher LLP and American Samoan Attorney Charles V. Ala’ilima. “The Supreme Court itself has contributed to this confusion, so it is important for the Court today to provide clarity on who has a right to citizenship and whether the controversial Insular Cases continue to control basic constitutional questions in U.S. territories.”

Petitioners Reply Brief highlights the Justice Department’s sudden about face on the Insular Cases. While they previously argued that the Tenth Circuit should rely on the Insular Cases to deny recognition of a right to citizenship, now they attempt to step away from the Insular Cases and mischaracterize the Tenth Circuit’s decision as not relying on the Insular Cases at all.

“We’ve seen this move before, where the Justice Department relies on the Insular Cases when arguing in front of judges who are bound by them, but then disclaims any reliance on the Insular Cases once they are before Supreme Court Justices who have the power to overrule them,” Weare said. “I don’t think anyone will be fooled.”

Petitioners Reply Brief also addresses concerns raised by American Samoan elected officials that recognizing a right to citizenship would threaten self-determination and cultural preservation.

“There is no disagreement in this case on the importance of protecting self-determination and culture in American Samoa. But recognition of citizenship does not threaten those values, and American Samoan officials have yet to provide any plausible legal basis for their arguments that it would,” stated American Samoan Attorney Charles V. Ala’ilima, who represents the Fitisemanu plaintiffs. “Our traditional leaders who signed the Deeds of Cession were right to believe they had become U.S. citizens when they transferred sovereignty to the United States and they were right to understand that citizenship does not threaten American Samoa’s culture or way of life. If our leaders today no longer want to be a part of the United States, they should say so. But the Fourteenth Amendment of the United States makes very clear that Congress has no power to deny citizenship to any Samoan born in American Samoa as a birthright so long as the U.S. flag flies over our islands.”  

Briefing at the cert.-stage in Fitisemanu also includes eight briefs filed in support of Supreme Court review and one brief filed against. 

The Supreme Court will take up Fitisemanu and the question of the Insular Cases during their private conference on October 7, 2022, and will announce a decision whether to grant review later this Fall. If granted, Fitisemanu would be argued before the Supreme Court next year. If denied, questions about citizenship in U.S. territories and the continuing validity of the Insular Cases will remain unresolved for the foreseeable future. 

For more information on Fitisemanu v. United States, including case materials and other resources, see here.

For more information on the campaign to overrule the Insular Cases, see here

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published this page in Equally American Blog 2022-09-14 15:41:40 -0400