John Fitisemanu is a proud passport-holding, tax-paying American; But Not Recognized As a U.S. Citizen Because of Where He Was Born on U.S. Soil.
John Fitisemanu was born in American Samoa - a U.S. territory since 1900. As a result, he is denied the right to vote in Utah based on a discriminatory federal law that purports to label him as a "national, but not a citizen, of the United States." Mr. Fitisemanu, and others born in American Samoa, are expressly labeled as second-class Americans - federal policy requires that his U.S. passport include a disclaimer in all capital letters that “THE BEARER IS A UNITED STATES NATIONAL AND NOT A UNITED STATES CITIZEN.”
Mr. Fitisemanu and other Utah residents born in American Samoa (Pale and Rosavita Tuli pictured), along with the Southern Utah Pacific Islander Coalition, are now defending their right to citizenship in court.
The plaintiffs in Fitisemanu v. United States argue that Congress does not have the power to redefine the Constitution’s guarantee of birthright citizenship to treat those born in U.S. territories as second-class Americans. The Citizenship Clause of the Fourteenth Amendment unequivocally guarantees citizenship to persons born on U.S. soil, whether born in a state, territory, or the District of Columbia. They also argue it is time to overrule the Insular Cases, a series of racist Supreme Court cases that established a doctrine of "separate and unequal" for residents of U.S. territories and have been relied on to deny recognition of birthright citizenship in U.S. territories. Justice Gorsuch recently declared "that the Insular Cases rest on a rotten foundation," with Justice Sotomayor calling them "odious and wrong."
The United States argues that Congress has the power to turn birthright citizenship on and off in U.S. territories. Elected officials from American Samoa support the U.S. position that questions of citizenship in U.S. territories are up to Congress, while officials from other U.S. territories argue that birthright citizenship is guaranteed by the Constitution and that the Insular Cases should be overruled.
Plaintiffs are represented by Equally American, a non-profit that advocates for equality and civil rights in U.S. territories, attorneys at Gibson, Dunn, & Crutcher LLP, and Charles V. Ala’ilima, a prominent American Samoan attorney.
In June 2021, a divided panel of the Tenth Circuit reversed Judge Waddoups landmark 2019 ruling in favor of Mr. Fitisemanu and his fellow plaintiffs. The Fitisemanu plaintiffs are seeking review by the U.S. Supreme Court.
Bottom line: If you are born on U.S. soil, citizenship is a right, not a privilege.
U.S. Supreme Court (Docket)
- April 27, 2022, Petition for Certiorari (Fitisemanu plaintiffs)
- May 26, 2022, Scholars of Constitutional Law and Legal History
- May 27, 2022, Samoan Federation of America, Inc.
- May 27, 2022, Descendants of Dred Scott and Isabel Gonzalez
- May 27, 2022, Virgin Islands Bar Association
- May 27, 2022, Civil Rights Organizations
- May 31, 2022, Former Federal and Local Judges
- May 31, 2022, Citizenship Scholars
- May 31, 2022, Current and Former Elected Officials of Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands
- July 13, 2022, Northern Marianas Descent Corporation & United Carolinians Association (in support of respondents)
- August 29, 2022, Brief of Respondents, American Samoa Government and the Hon. Aumua Amata, in opposition to certiorari
- August 29, 2022, Brief of Respondents, U.S., in opposition to certiorari
- September 14, 2022, Reply Brief of Petitioner John Fitisemanu
U.S. Court of Appeals for the Tenth Circuit
Petition for Rehearing En Banc
- December 27, 2021, Petition for Rehearing En Banc Denied, Judges Bacharach and Moritz dissenting
- September 15, 2021, Intervenor American Samoa's Brief Opposing Rehearing En Banc
- September 15, 2021, United States Response to Petition for Rehearing
- August 6, 2021, Members of Congress, Former Members of Congress, and Former Governors of Guam, Northern Mariana Islands, Puerto Rico, and U.S Virgin Islands in Support of Rehearing En Banc
- August 6, 2021, Citizenship Scholars in Support of Rehearing En Banc
- August 6, 2021, Scholars of Constitutional Law and Legal History in Support of Rehearing En Banc
- August 6, 2021, American Civil Liberties Union and ACLU of Utah
- August 6, 2021, Virgin Islands Bar Association in Support of Rehearing En Banc
- July 31, 2021, Petition for Rehearing En Banc
Panel
- June 15, 2021, Divided Tenth Circuit Opinion Reversing District Court
- September 23, 2020, Recording of Oral Argument
- July 22, 2020, Plaintiffs-Appellees, 28j Letter Providing Supplemental Authority (FOMB v. Aurelius)
- May 26, 2020, Reply Brief for Defendants-Appellants United States
- May 26, 2020, Reply Brief for Intervenors American Samoa and the Hon. Aumua Amata
- May 12, 2020, Members of Congress, Former Members of Congress, and Former Governors of Guam, Northern Mariana Islands, Puerto Rico, and U.S Virgin Islands
- May 12, 2020, Samoan Federation of America
- May 12, 2020, Citizenship Scholars
- May 12, 2020, Scholars of Constitutional Law and Legal History
- May 12, 2020, American Civil Liberties Union and ACLU of Utah
- May 12, 2020, Virgin Islands Bar Association
- May 5, 2020, Brief for Plaintiffs-Appellees
- April 14, 2020, Brief for Intervenors American Samoa and the Hon. Aumua Amata
- April 14, 2020, Brief For Defendants-Appellants United States
U.S. District Court for the District of Utah
- December 13, 2019, Order Staying Court's Ruling, Judge Waddoups
- December 12, 2019, Decision and Order Granting Plaintiffs' Motion for Summary Judgment, Judge Waddoups
- February 19, 2019, Plaintiffs' Notice of Supplemental Authority and Exhibit A
- November 14, 2018, Oral Argument (Transcript)
- September 28, Intervenors' Reply, filed by American Samoa
- September 14, Plaintiffs' Response to Intervenor's MTD/MSJ
- September 13, Order Denying Intervention of Right But Granting Permissive Intervention to American Samoa
- September 10, Proposed Intervenors' Motion to Dismiss/Motion for Summary Judgment, filed by American Samoa
- August 3, 2018, Defendants' Reply in Support of Motion to Dismiss
- July 9, 2018, Plaintiffs' Reply in Support of Motion for Summary Judgment and Opposition to Defendants' Motion to Dismiss/Cross Motion for Summary Judgment
- June 29, 2018, Immigration Reform Law Institute Amicus Brief in Support of Neither Party
- June 8, 2018, Defendants' Motion to Dismiss, Cross Motion for Summary Judgment
- April 19, 2018, Samoan Federation of America, Inc., Amicus Brief
- Appendix of historical materials relating to citizenship and American Samoa
- April 9, 2018, Insular Cases Scholars Amicus Brief
- April 6, 2018, Citizenship Scholars Amicus Brief
- March 30, 2018, Plaintiffs' Motion for Summary Judgment
- March 27, 2018, Complaint
Case Updates
- New Term Gives Supreme Court an Historic Opportunity to Finally Overturn Racist Insular Cases (September 27, 2022)
- Citizenship in U.S. Territories and the Future of the Insular Cases at Stake as Cert.-stage Briefing Concludes, Conference Set for October 7 (September 14, 2022)
- Biden-Harris Justice Department Rejects Calls to Overrule Racist Supreme Court Cases Grounded in White Supremacy (August 29, 2022)
- American Samoa Government Supports DOJ’s View That Congress Can Unilaterally Deny Citizenship to People Born In U.S. Territories (August 29, 2022)
- Biden-Harris Administration Faces Stark Choice: Embrace or Reject Racist Supreme Court Cases Grounded in White Supremacy (August 23, 2022)
- Supreme Court Petition to Overrule Insular Cases Gets Boost From Eight Amicus Briefs (May 31, 2022)
- Justices’ Call to Overrule Insular Cases Taken Up in Supreme Court Petition (April 27, 2022)
- Case About Birthright Citizenship in U.S. Territories Heads to Supreme Court (January 4, 2022)
- Biden-Harris Justice Department Embraces Racist Insular Cases (September 16, 2021)
- Over One Thousand American Samoans Speak Out On Citizenship (July 31, 2021)
- Americans Denied Citizenship Seek Review by Full Tenth Circuit (July 31, 2021)
- Divided Tenth Circuit Relies on Insular Cases to Reject Right to Citizenship in U.S. Territories (June 16, 2021)
- Federal Judge Issues Landmark Decision Recognizing Birthright Citizenship in U.S. Territories (December 12, 2019)
- American Samoans Make Case for Birthright Citizenship on 150th Anniversary of the Fourteenth Amendment (July 9, 2018)
- Territorial Birthright Citizenship Lawsuit Receives Amicus Support (April 20, 2018)
- Federal Lawsuit Argues for Equal Citizenship in U.S. Territories (March 27, 2018)
Press Coverage
- Civil rights groups call on House to pass resolution against racist ‘Insular Cases’, The Hill, Rafael Bernal, December 1, 2022
- The Only U.S. Territory Without U.S. Birthright Citizenship, New York Times, Natasha Frost, November 25, 2022
- Residents of U.S. Territories Deserve the Basic Rights of American Citizenship, Law.com, Wanda Sanchez Day, Carlos Morales, Marcy Kahn, Kevin Jason and Kathleen Rubenstein, October 24, 2022
- Citizenship Laws Gorsuch Called 'Racist' Rejected for Review, Bloomberg Law, Kimberly Strawbridge Robinson, October 17, 2022
- Supreme Court Declines To Take Case Aimed At Overturning 100-Year-Old Racist Precedents, Yahoo! News, Paul Blumenthal, October 17, 2022
- Court declines to take up petition seeking to overturn Insular Cases, SCOTUSBlog, Amy Howe, October 17, 2022
- Supreme Court Won't Consider Rights For U.S. Territory Citizens--Even After Neil Gorsuch Slammed Its Racist Precedents, Forbes, Alison Durkee, October 17, 2022
- Supreme Court won't take case raising past rulings denounced as racist, Washington Post, Robert Barnes, October 17, 2022
- Supreme Court declines to consider challenge to racist citizenship laws, NPR, Nina Totenberg, October 17, 2022
- Reschedule Watch: Birthright Citizenship and torts to members of the armed forces, SCOTUSBlog, John Elwood, October 13, 2022
- The Ghost of Dred Scott Still Haunts Us, Time, Neal Katyal, October 13, 2022
- The Crisis in Puerto Rico Five Years After Hurricane Maria, New York Law Journal, Carlos J. Cuevas, October 12, 2022
- The Supreme Court Gets a Chance to Revisit America's Imperialist Past, The New Republic, Matt Ford, September 19, 2022
- White House Supporting Racist Rulings, Plaskett Says, St. Thomas Source, Mat Probasco, August 30, 2022
- As precedent on US territories draws criticism, feds want high court to stay hands off, Courthouse News Service, Kelsey Reichmann, August 30, 2022
- Biden administration urges Supreme Court not to take citizenship case, The Washington Post, Robert Barnes, August 29, 2022
- Supreme Court faces new pressure to reconsider racist ‘Insular Cases’, The Hill by Rafael Bernal, August 10, 2022
- As Unjust As They Are, The Insular Cases Are Still 'Good Law.' The ABA Is Pushing For SCOTUS To Change That. Above The Law, Chris Williams, August 11, 2022
- The Insular Cases Must Be Overturned, Bloomberg Law, Sherry Levin Wallach (New York State Bar Association President), August 3, 2022
- Taking Aim at the Insular Cases, NYSBA Task Force Seeks to Increase Equality for Millions in U.S. Territories, New York Law Journal, July 19, 2022
- Biden Urged to Help Fight Cases Treating Territories Inferior, Bloomberg Law, Kimberly Robinson, July 12, 2022
- Democratic Lawmakers Ask Biden To Support Overturning Racist Court Precedents, HuffPost, Paul Blumenthal, July 12, 2022
- Civil Rights Orgs Challenge Racist “Insular Cases” Used to Legally Discriminate Against Puerto Rico, Democracy Now, June 1, 2022
- Ex-Judges in U.S. Territories Call for Defeat of Insular Cases, Law360, May 31, 2022
- Three American Samoans, in ask for birthright citizenship, answer Gorsuch’s call for a chance to overturn Insular Cases, SCOTUSblog, Ellana Erskine, May 13, 2022
- Gorsuch Calls for Overruling 'Shameful' Cases on U.S. Territories, Adam Liptak, New York Times, May 2, 2022.
- Gorsuch Call to Overturn 'Rotten' Cases Tested by New Appeal, Kimberly Strawbridge Robinson, Bloomberg Law, April 28, 2022.
- Supreme Court Justice Neil Gorsuch Argues 'Racist' Decisions Against Puerto Ricans Should be Overturned-Here's What that Could Mean, Forbes, Alison Durkee, April 21, 2022.
- The Non-Originalist Insular Cases, The Originalism Blog, Michael Ramsey, July 20, 2021
- American Samoans are the latest victims of these ignorant Supreme Court rulings, MSNBC by Steven Vladeck, June 18, 2021
- American Samoans Should Be Granted U.S. Citizenship, Judge Rules, New York Times by Michael Levenson, December 13, 2019
- American Samoans' Citizenship Status Still In Limbo After Judge Issues Stay, NPR by Vanessa Romo, December 13, 2019
- Federal Judge Rules American Samoans Are U.S. Citizens by Birth. Finally. Slate.com by Mark Joseph Stern, December 12, 2019
- American Samoans Get Birthright U.S. Citizenship, Court Rules, Bloomberg.com by Brian Flood, December 12, 2019
- American Samoans sue for birthright citizenship, Associated Press by Sophia Yan, March 28, 2018
- Why the Insular Cases Must Be the Next Plessy, Harvard Law Review Forum by Neil Weare, March 28, 2018
Other Resources
- Backgrounder on Campaign to Overrule Insular Cases
- Insular Cases Panel Spans Territories, Event Co-Hosted by Equally American, LatinoJustice PRLDEF, and Microjuris.com, October 3, 2022
- Letter from New York State Bar President to Attorney General Garland, August 22, 2022
- American Bar Association Resolution 404, August 9, 2022
- Constitutional Citizenship in U.S. Territories, Lawfare, Cassandra Burke Robertson and Irina D. Manta, July 27, 2022
- Press Conference by National Civil Rights Groups Calling on Biden-Harris Administration to Condemn Insular Cases, July 12, 2022
- Letter from Members of Congress to President Biden and Vice President Harris, July 12, 2022
- Letter from Fitisemanu Plaintiffs to Solicitor General Prelogar, July 12, 2022
- New York State Bar Association Task Force on U.S. Territories, Established June 2022
- The U.S. Has a Colonies Problem: The Campaign to Overrule the Insular Cases, Hosted by the Hispanic Federation with ACLU, LatinoJustice PRLDEF, and Equally American, May 24, 2022
- Letter from Civil Rights Groups to Attorney General Garland and Solicitor General Prelogar, February 10, 2022
- The Insular Cases Run Amok: Against Constitutional Exceptionalism in the Territories, Yale Law Journal, Christina D. Ponsa-Kraus
- Integral Citizenship, Texas Law Review, Cassandra Burke Robertson and Irina D. Manta
- Case Note: Fitisemanu v. United States: U.S. Citizenship in American Sāmoa and the Insular Cases, UCLA Pacific Basin Law Journal, Guy Charlton and Tim Fadgen (2022)
- Congressional Testimony by Charles V. Ala'ilima Addressing Concerns Over Citizenship and the Insular Cases, with exhibits, May 26, 2021
- Originalism and Birthright Citizenship, 109 Georgetown L.J. 405 (2020), Michael Ramsey
- LISTEN: Burn the Boats Podcast-The Rights of American Samoa, Ken Harbaugh interviews American Samoan Veteran Jeniffer Afualo-Robinson, December 12, 2019
- LISTEN: Americanish, Radiolab, April 19, 2019
- LISTEN: American Samoans Sue for Birthright Citizenship, The Takeaway, WNYC, April 9, 2018
- WATCH: Last Week Tonight with John Oliver – U.S. Territories, HBO, March 8, 2015
- WATCH: The Samoans, Stateless Voices Documentary Series, Feb. 7, 2015
More about U.S. citizenship and American Samoa is available in this FAQ page.
More about the campaign to overrule the Insular Cases is available here.
Photo Credit: Keil Creations