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Fitisemanu v. United States.

Nos. 20-4017 & 20-4019.  D.Utah. Judge Lucero. Fourteenth Amendment Citizenship Clause—American Samoa—Unincorporated Territories—Insular Cases.

June 14, 2021


American Samoa is an unincorporated US territory whose people are designated by statute as “nationals, but not citizens, of the United States.” It is the only unincorporated territory whose people are not birthright citizens.

Plaintiffs are three citizens of American Samoa living in Utah who filed suit contending that their noncitizen status violates the Fourteenth Amendment’s Citizenship Clause because when properly interpreted, the Citizenship Clause guarantees birthright citizenship to territorial inhabitants without the need for Congressional action. The district court agreed.

The federal government, joined by intervenor defendants the American Samoan government and an individual representative, appealed. The gravamen of the appeal is whether birth in American Samoa constitutes birth within the United States for purposes of the Fourteenth Amendment. The Tenth Circuit’s analysis was guided by the Insular Cases, a series of Supreme Court decisions issued in the early 20th century that addressed how the Constitution applied to unincorporated territories. The Citizenship Clause provides that “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.”

Under the Insular Cases analytical framework, courts first consider whether a constitutional provision applies to unincorporated territories “by its own terms.” A constitutional provision may apply by its own terms to an unincorporated territory, but the precise geographic scope of the Citizenship Clause is not apparent from its text. Therefore, the Tenth Circuit looked to consistent historical practice, which shows that Congress has always wielded plenary authority over the citizenship status of unincorporated territories. Accordingly, the Tenth Circuit resolved the textual ambiguity so as to leave the citizenship status of American Samoans with Congress.

The next stage of the analysis is whether citizenship is a “fundamental personal right” as that term is defined by the Insular Cases. Constitutional provisions that implicate fundamental personal rights apply without regard to local context, but the term “fundamental” has a distinct and narrow meaning in the context of territorial rights. Only principles that are the basis of all free government establish the rights that are fundamental for Insular Cases purposes. Birthright citizenship does not qualify as a fundamental right under the Insular Cases framework because while it is an important element of the American legal system, it is not a prerequisite to a free government.

Lastly, the Insular Cases framework requires the court to weigh practical considerations concerning the extension of birthright citizenship, that is, whether the circumstances are such that recognition of the right to birthright citizenship would prove impracticable and anomalous. Here, given the expressed preferences of the American Samoan people against citizenship and the potential disruption of their way of life by judicial imposition of citizenship, the extension of US birthright citizenship is impracticable and anomalous. Accordingly, the district court’s interpretation of the Citizenship Clause was incorrect.

The judgment was reversed.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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