John Fitisemanu is a proud passport-holding, tax-paying American; But Not Recognized As a Citizen.
But because he 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, filing a federal lawsuit in the U.S. District Court for the District of Utah.
Fitisemanu v. United States argues 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.
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 ruling in favor of Mr. Fitisemanu and his fellow plaintiffs. The Fitisemanu plaintiffs are considering their options for appeal.
Bottom line: If you are born on U.S. soil, citizenship is a right, not a privilege.
U.S. Court of Appeals for the Tenth Circuit
Petition for Rehearing En Banc
- September 16, 2021, Intervenor American Samoa's Brief Opposing Rehearing En Banc
- September 16, 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
- 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 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
- Over One Thousand American Samoans Speak Out On Citizenship (posted July 31, 2021)
- Americans Denied Citizenship Seek Review by Full Tenth Circuit (posted July 31, 2021)
- Divided Tenth Circuit Relies on Insular Cases to Reject Right to Citizenship in U.S. Territories (posted June 16, 2021)
- Federal Judge Issues Landmark Decision Recognizing Birthright Citizenship in U.S. Territories (posted December 12, 2019)
- American Samoans Make Case for Birthright Citizenship on 150th Anniversary of the Fourteenth Amendment (posted July 9, 2018)
- Territorial Birthright Citizenship Lawsuit Receives Amicus Support (posted April 20, 2018)
- Federal Lawsuit Argues for Equal Citizenship in U.S. Territories (posted March 27, 2018)
Press Coverage
- 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
- Appeals court: No birthright citizenship for American Samoa, Guam Pacific Daily News by Steve Limtiaco, June 16, 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
- LISTEN: American Samoans Sue for Birthright Citizenship, The Takeaway, WNYC, April 9, 2018
- American Samoans sue for birthright citizenship, Associated Press by Sophia Yan, March 28, 2018
Other Resources
- May 26, 2021 Congressional Testimony by Charles V. Ala'ilima Addressing Concerns Over Citizenship and the Insular Cases, with exhibits
- 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
- 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.
Photo Credit: Keil Creations