Fitisemanu v. United States - Equal Citizenship in U.S. Territories

John Fitisemanu is a proud passport-holding, tax-paying American; But Not Recognized As a U.S. Citizen.

Because Mr. Fitisemanu was born in American Samoa, 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.

The United States has defended this discrimination by repeatedly relying on the Insular Cases, a series of racist Supreme Court cases that established a doctrine of "separate and unequal" for residents of U.S. territories. Elected officials from American Samoa support the U.S. position that based on the Insular Cases 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.

Fitisemanu comes on the heels of a widely criticized 2015 decision by the D.C. Circuit in Tuaua v. United States that improperly relied on the Insular Cases to rule that questions of citizenship in so-called “unincorporated” territories are left entirely to Congress. An 8-Justice Supreme Court declined to review the decision despite a compelling petition filed by our co-counsel, former Solicitor General Theodore B. Olson, and seven amicus briefs filed by leading scholars, territorial officials, civil rights groups, former judges, and others urging the Court to take the case. This leaves the question of constitutional birthright citizenship in current U.S. territories unresolved in the remaining federal circuits.

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)

U.S. Court of Appeals for the Tenth Circuit

Petition for Rehearing En Banc

Panel

U.S. District Court for the District of Utah

Case Updates

Press Coverage

Other Resources

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

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