American Samoan John Fitisemanu filed a lawsuit against the United States Department of State on Tuesday, April 10, alleging that the department’s policy of not granting birthright citizenship to American Samoans violates the 14th Amendment. Fitisemanu is the lead plaintiff in the case along with a number of American Samoans, who are being led by attorney Neil Weare, who is president of the nonprofit group Equally American. Fitisemanu’s claim is one of serious legal and moral merit, however it is unlikely to succeed in court due to a conflicted political situation in the territory and a strange historical precedent. While it may not be easy for the plaintiffs to win citizenship for all American Samoans, the U.S. Congress must do more for American Samoans seeking citizenship.
The text of the 14th Amendment states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Given that American Samoa is a United States Territory, is more or less subject to the jurisdiction of the United States and that American Samoans hold no other national citizenship upon birth, it seems only fair that they would be granted birthright citizenship, or at least a fast-tracked path to citizenship.
According to the United States Department of Homeland Security, however, “persons born in American Samoa … are generally considered nationals but not citizens of the United States.” This categorization, denying citizenship to residents of U.S. territories may make some sense; however, the same document also recognizes that persons born in Puerto Rico, the Virgin Islands, Guam and other territories “may be citizens at birth.”
The nature of Fitisemanu and Weare’s claim, however, is at odds with the history of U.S. nationals gaining citizenship. Historically, U.S. “unincorporated territories,” or territories with no clear path to future statehood, such as Puerto Rico and Guam, were granted citizenship to their residents via legislation passed by Congress, such as the Jones-Shafroth Act of 1917 for Puerto Rico and the Organic Act of the Territorial Government of Guam of 1950, which Americanized their governments and granted residents citizenship under the purview of Congress.
As a result of these precedents, regardless of the merit of the legal statute, the means by which nationals of territories such as American Samoa can gain citizenship is strictly through congressional authorization. Following this precedent, it is highly unlikely that Fitisemanu and Weare will be able to rely on judicial activism to secure citizenship for the plaintiffs.
Instead, the traditional and historically supported means of obtaining citizenship for American Samoans would have to come through a public campaign that likely involves a referendum and will require initiative by Congress to legislate their citizenship. University of Southern California law Professor Sam Erman said, “In order to get citizenship, you need to have the sense among the U.S. Congress that the population on the island wants citizenship, and you have to have a U.S. Congress willing to give the citizenship. Those haven’t aligned yet for American Samoa.”
While the lawsuit is certainly a very effective means of raising the profile of American Samoans seeking American citizenship — look, the school newspaper at UC Riverside is writing about it — there are still a number of impediments that need to be cleared. First, American Samoa has never held a formal referendum on the topic of American citizenship, and secondly, the American Samoan government actually opposed a similar case filed by Weare in 2012, stating that a ruling granting citizenship to American Samoans could have “unintended and harmful effects” on American Samoan culture.
Now, the American Samoan government opposing citizenship for Samoan nationals may seem backwards, but first let’s return to the text of the 14th Amendment. Remember, the 14th Amendment only grants citizenship to people born or naturalized in the United States, and “subject to the jurisdiction thereof.” It turns out, a different clause of the 14th Amendment, which states “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” is in legal conflict with the American Samoan Communal Land System, which prevents the transfer of land ownership to persons who are not of American Samoan heritage.
Denying the ownership of land to non-American Samoans is a clear violation of the equal protection clause of the 14th Amendment, and according to Sean Morrison, former president of the American Samoa Bar Association, “The communal land and matai systems are such pillars of the cultural system that there is a widespread fear that any change to the political structure may affect their durability. A threat to the matai hierarchy would undermine the very social fabric of the nation.”
Considering these factors, the prospect of American Samoan citizenship seems largely untenable for the foreseeable future — but isn’t there something that can be done for American Samoans who are willing to sacrifice their cultural attachment to the communal land system and other related legal statutes for a chance at American citizenship? Currently under U.S. Naturalization and Residency Law, the lawsuit alleges, noncitizen nationals, such as American Samoans, are less likely to be treated as favorably as full-fledged citizens when attempting to sponsor foreign relatives for immigration visas and “are treated the same as foreign nationals for most aspects of the naturalization process.”
Given that American Samoans are American nationals, serve in the U.S. Military and hold no other citizenship, it’s only fair that we should allow them, as residents of United States Territories to become naturalized citizens if they give up their cultural customs that are at odds with citizenship and claim residency in a state or territory that has been granted to citizenship either by the United States Constitution or Congress. America is the only country they’ve ever known; those of them who fully commit to our ideals deserve citizenship as much as anybody.