Opening Brief Filed in DC Circuit Case Arguing for Equal Citizenship in U.S. Territories

The opening merits brief was filed today in Tuaua v. United States, a landmark case before the U.S. Court of Appeals for the District of Columbia Circuit that considers whether Congress can redefine the Citizenship Clause of the Fourteenth Amendment to deny birthright citizenship to people born in the U.S. territory of American Samoa.

LeneTuaua_121412-27_600.jpgLead Plaintiff Lene Tuaua is a proud, passport-carrying American, born in American Samoa, a U.S. territory since 1900.  While attending college in California during the 1960s, he registered for the military draft.  He has both a child and grandchild born in American Samoa who currently serve in the U.S. Armed Forces.

But the federal government refuses to recognize any of them as U.S. citizens.  Instead, discriminatory federal laws and agency policies label them and others born in American Samoa as “nationals, but not citizens, of the United States.” 

Mr. Tuaua wants to change that.  He, the Los Angeles-based Samoan Federation of America, and other individuals born in American Samoa are challenging this second-class status in their appeal to the D.C. Circuit.  Their argument is simple: the Fourteenth Amendment guarantees them citizenship by birth on U.S. soil.

“Because we are born on U.S. soil, my family should have the same rights as other Americans and be recognized as citizens,” said Tuaua, a retired Marshal of the High Court of American Samoa.  “How can we be Americans, but not citizens?  That simply doesn’t make any sense.” 

Since 1900, American Samoans have served bravely alongside their fellow Americans in every major U.S. conflict.  In fact, people from American Samoa have a higher rate of service in the U.S. Armed Forces than people from any State. American Samoans have made significant sacrifices for their country, and on a per capita basis, their casualties in Iraq and Afghanistan have been seven times the national average.

Current_Passport_003.jpgThe federal government argues that the Constitution’s guarantee of birthright citizenship does not apply to people born in American Samoa.  If they want to be citizens, the government argues, these Americans must undergo the same process of naturalization as foreign nationals.

Loa Pele Faletogo is President of the Samoan Federation of America,.  He was born in American Samoa, where he enlisted in the U.S. Army in 1975.  After retiring, Mr. Faletogo and his family settled in Los Angeles, California, where they have lived for more than 20 years.  Frustrated that he could not vote as a “non-citizen national,” he went through the costly and burdensome naturalization process.  Over the years the Samoan Federation has helped many American Samoans naturalize, but thousands of others living throughout the 50 states remain disenfranchised because of their non-citizen status.

“I’m an American and a veteran who was born on U.S. soil.  I shouldn’t have had to naturalize in order to enjoy the right to vote in California.  For too many American Samoans living in the states, the naturalization process has become a poll tax and literacy test all rolled into one.  Our community deserves better, and the Constitution demands it,” said Mr. Faletogo.

In defending the laws that impose a second-class legal status on American Samoans, the federal government has relied on a series of controversial decisions known as the Insular Cases, which First Circuit Judge Juan Torruella has criticized as establishing a “doctrine of separate and unequal” status in U.S. territories.  Speaking at Harvard Law School’s “Revisiting the Insular Cases” conference in February, Judge Torruella argued that “[t]he Insular Cases represent classic Plessy v. Ferguson legal doctrine . . . that should be totally eradicated from present day constitutional reasoning.” 

Last June, the D.C. District court dismissed the Tuaua lawsuit, and the plaintiffs appealed to the D.C. Circuit.  This past February, the D.C. Circuit denied the federal government’s motion to dispose of the appeal before full briefing, paving the way for today’s filing. 

“The Constitution’s command is clear.  Citizenship is a right, not a privilege, for everyone born on U.S. soil, including those born in U.S. territories,” said Neil Weare, President of We the People Project, a non-profit that works to achieve equal rights for residents of U.S. territories, who represents the Tuaua plaintiffs.

“The Citizenship Clause was written to strip the government of the power to say that people born on American soil aren't citizens.  It defies the Framers’ intent for politicians to try restricting where the Citizenship Clause applies and who it applies to,”  said Murad Hussain, part of a team of attorneys at Arnold & Porter, LLP, who are providing pro bono representation.

“So long as American Samoa is under the U.S. flag, this second-class status is not just a legal wrong under the United States Constitution, it is moral wrong,” said Charles V. Ala’ilima, a prominent American Samoan attorney who is also providing pro bono representation.

The next deadline in the case is May 12, when amicus curiae supporting the plaintiffs will file their own briefs.  Several groups have already asked the D.C. Circuit’s permission to do so, including “current and former government officials” represented by Covington & Burling LLP, “citizenship scholars” represented by Gibson, Dunn & Crutcher LLP, and “constitutional law and legal history scholars” represented by Wilmer Cutler Pickering Hale and Dorr LLP.

The federal government will file its brief later this summer, as will the American Samoa Government and the Territory’s congressman, who have moved to intervene in the appeal.  If the D.C. Circuit holds oral argument, they are expected to take place later this year.

More information about Tuaua v. United States, including the opening brief and other case materials, is available here; additional background on the plaintiffs is available here

For an overview of the constitutional arguments in Tuaua v. United States, please see Neil Weare’s February Op-Ed on, “Citizenship is a Birthright in U.S. Territories.”  

Photo: Lene Tuaua and family in American Samoa; Credit: Lemala Photography


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commented 2015-10-20 16:24:14 -0400 · Flag
Hello. I got access to a template CA Form K version at this place
commented 2015-10-19 09:24:06 -0400 · Flag
Interesting ideas , I loved the analysis , Does anyone know if my assistant could get access to a fillable CA Form K copy to work with ?
commented 2014-04-28 10:30:18 -0400 · Flag
My dear and distinguished colleague Neil!!! From the American colonial Territory of Puerto Rico, eternal glory for your struggles in helping the good Samoan people from their colonial predicament. I am 100 % in full solidarity with your more than lofty cause!!!! While glancing around the case "Igartua vs. U.S., 417 F.3d 145 (Aug 2005) I discovered a historical fact which you should take advantage of. At page 65-66 of said case, the U.S. Chief Judge Juan F. Torruellas issued this opinion, a dissenting one but nonetheless as effective as Justice John Marshall Harlans in Plessy vs. Ferguson. The then Chief U.S. Judge Torruellas stated that:

In the course of ruling upon this issue, the Supreme Court, in 1901, decided the Insular Cases,30 wherein it sanctioned Puerto Rico’s colonial status ad perpetuam. There is no question that the Insular Cases are on par with the Court’s infamous decision in Plessy v. Ferguson in licencing the downgrading of the rights of discrete minorities within the political hegemony of the United States. See Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896) (holding that it was not a violation of the Equal Protection Clause for a state law to segregate white and colored people in public facilities provided “equal” alternatives were provided for each race); see also Rubin Francis Weston, Racism in U.S. Imperialism: The Influence of Racial Assumptions on American Foreign Policy, 1893-1946 15 (1972) (“Those who advocated overseas expansion faced this dilemma: What kind of relationship would the new peoples have to the body politic? Was it to be the relationship of the Reconstruction period, an attempt at political equality for dissimilar races, or was it to be the Southern `counterrevolutionary’ point of view which denied the basic American constitutional rights to people of color? The actions of the federal government during the imperial period and the relation of the Negro to a status of second-class citizenship indicated that the Southern point of view would prevail. The racism which caused the relegation of the Negro to a status of inferiority was to be applied to the overseas possessions of the United States.”)

As a Ph.d in American History, his words fully described the racism which caused and configured each and every American Non Incorporated Territory Status which has victimized each and every American colonial Territory. Our Samoan brethren, the Virgin Islanders, the Guamese, and we the Puertorricans are no exception to said institutional racism. Please do not fail in considering “Racism” as the factor to be denounced and challenged in your very skillful attack against what has been indeed, the effects of U.S institutional racism on the good people of American Samoa. Dr. Nelson Rochet, [email protected]
commented 2014-04-28 09:37:29 -0400 · Flag
As a historian specialized in U.S. History, it should authoritatively be pointed out that the one and only one factor responsible for keeping the good people of American Samoa as an inferior class of “citizenship” under the American flag has been -and this is indeed very shameful and regrettable-that they, as well as other subject people in the U.S. colonial Territories as Puerto Rico, the Virgin Islands, Guam, etc., were labeled as “inferior races”. That happened around the turn of the century in the 1900’s. For that racist reason, Puerto Ricans, Filipinos, Guamese, Samoans as well as American blacks were lumped together as “inferior races” in suffering the despoiling of their civil and political rights. That unfortunately happened because in the prevailing American culture of those ominous and tragic days, many in American society of said days ascribed rights, (both civil and political ) based on skin color, race, whether yellow, black or whatever. As the U.S. Commission on Civil Rights pointed out in its 1963 Report, “the right to vote was denied on the basis of race and skin color.” In any case, in U.S. culture rights and privileges were based on these racist criteria. Thus, the great people of American Samoa, as well as the Puerto Ricans and Virgin Island peoples as well have all been terribly humiliated and degraded in their human dignity, by having been ascribed and assigned, the politically and juridically inferior status of “unincorporated territory”, which belongs to, but is not a part of the United States.(Downes vs. Bidwell, 182 U.S. 244, 282, 286, 341-342), May 27th, 1901. We support the Samoans claim for justice and equality. We also support all colonial peoples claim for the same. The good Samoan people should add in their legal briefs that the motive and real reason behind their colonial and inferior political status was and still is, historical U.S. racism, institutional racism.In accordance with Arlington Heights vs. Metropolitan, 429 U.S. 431, the Samoans have a right to an antidiscrimination remedy from U.S. Courts. They should demand it. Dr. Nelson Rochet, [email protected]