Tuesday, July 21, 2015

Plaintiffs Seek En Banc D.C. Circuit Review of Panel Decision Denying Equal Citizenship in U.S. Territories


Judge Janice Rogers Brown

Five American Samoans and the Samoan Federation of America petitioned yesterday for the full U.S. Court of Appeals for the D.C. Circuit to review a June decision by a three-judge panel that constitutional citizenship by birth on U.S. soil does not apply in U.S. territories.  The panel held in Tuaua v. United States that people born in the U.S. territory of American Samoa have no claim to birthright citizenship under the Citizenship Clause of the Fourteenth Amendment to the U.S. Constitution.  As a result, the United States government does not recognize them as citizens of any place.  Under federal law they owe “permanent allegiance” to the United States yet are labeled with the inferior status of “non-citizen national.” Residents of other territories had a similar status prior to recognition of citizenship by federal statute.  But federal statutes are subject to change, raising questions about how secure the future of citizenship may be in U.S. territories.  

The panel’s opinion, authored by Judge Janice Rogers Brown and joined by Senior Judges Laurence H. Silberman and David B. Sentelle, expanded the reach of the Insular Cases, a series of controversial decisions that have been criticized by First Circuit Judge Juan Torruella as creating a doctrine of “separate and unequal” status for residents of U.S. territories.  In doing so, it held that rights recognized as “fundamental” in other parts of the United States need not be recognized as “fundamental” in so-called “unincorporated” U.S. territories, a classification created by the Supreme Court at the turn of the 20th century to apply to newly acquired overseas territories. The decision raises questions about what other "fundamental rights" may not apply in U.S. territories.

“Fundamental rights should mean the same thing throughout the United States, whether one lives in a state, territory, or the District of Columbia,” said civil rights attorney Neil Weare, who argued the case in February and is President of We the People, a non-profit that advocates for equal rights and representation in U.S. territories.  “The panel’s decision could have far-reaching consequences for all U.S. territories, not just American Samoa.”    

The Tuaua case and the controversial Insular Cases doctrine were featured in a new book released in May that stems from last year’s Harvard Law School conference, “Reconsidering the Insular Cases”. 

As discussed at Harvard, the Supreme Court explained in 2008 that although “[t]he Constitution grants Congress and the President the power to acquire, dispose of, and govern territory,” it does not give them “the power to decide when and where its terms apply.”  The Court’s decision in Boumediene v. Bush also rejected the idea that “the political branches have the power to switch the Constitution on or off at will,” explaining that “[i]t may well be that over time the ties between the United States and any of its territories strengthen in ways that are of constitutional significance.”

“The panel’s dramatic departure from D.C. Circuit and Supreme Court precedent makes us hopeful that the full Court of Appeals will review this important case,” said Murad Hussain, an attorney at Arnold & Porter LLP, who also represents the plaintiffs.

People born in American Samoa are currently labeled with the inferior status of “non-citizen national,” meaning that while they carry the responsibilities of citizenship they are not guaranteed the benefits and protections of citizenship.   A recent mini-documentary examined the impact of this label on an American Samoan community based in Los Angeles, where these Americans are denied the right to vote and even access to certain jobs, even as they are expected to pay the same taxes as everyone else.  To enjoy the same rights as other Americans, they are required to naturalize, which can cost around $700.  The denial of the right to vote is not just an individual harm, but also dilutes the voting strength of American Samoan communities across the United States.  HBO’s Last Week Tonight with John Oliver recently examined this injustice through the use of humor and satire.

During the Iraq and Afghanistan wars, American Samoa had a casualty rate more than seven times the national average, higher than any state.  Three of the Tuaua plaintiffs are veterans of the U.S. Armed Forces, including one who received two Purple Hearts for his service in Vietnam.  Another veteran plaintiff who lives in Hawaii is not only denied the right to vote, but is also denied the right to own a firearm because he is only recognized as a national, but not a citizen.  The third veteran served on the front lines during the Liberation of Kuwait, but could only sit and watch as those with whom he served voted in the 1992 Presidential election.  Another plaintiff lost her job in a government agency after it was discovered that her U.S. passport stated she was not a U.S. citizen. 

“I was born on U.S. soil in American Samoa, several of my children serve in the U.S. Armed Forces, yet we are still not recognized as U.S. citizens at birth.  So long as American Samoa is under the U.S. flag, with our sons and daughters fighting to defend that flag, we deserve the same right to citizenship enjoyed by every other American,” said Leneuoti Tuaua, lead plaintiff in Tuaua v. United States.  As a young man, Mr. Tuaua was denied the opportunity to pursue a career in law enforcement in California, where U.S. citizenship is a job requirement. 

The panel’s decision relied on the fact that American Samoa’s government and non-voting Delegate to Congress have opposed the case based on the view that the question of citizenship in American Samoa should be answered by Congress, not the Constitution. 

“The full D.C. Circuit will have the opportunity to get right what the panel got so wrong about American Samoa’s history and people.  When American Samoa’s traditional leaders transferred sovereignty to the United States in 1900 and 1904, they believed citizenship was part of the deal.  Decades of struggle to get Congress to recognize American Samoans as citizens failed and American Samoans have been relegated to a second class status within the United States. That’s why court action is needed today,” said Attorney Charles Ala’ilima, who also represents the plaintiffs. “Five generations of American Samoans have been born with allegiance only to the United States, and our culture continues to thrive in the face of new challenges and opportunities.  The concerns raised by American Samoa’s leaders today are misplaced—recognition of citizenship would not have any adverse effect on our land, culture, or political self-determination.”

Previously filing as amicus curiae in support of the plaintiffs were a group of prominent citizenship scholars represented by Gibson, Dunn & Crutcher LLP, Members of Congress and former government officials from U.S. territories represented by Covington & Burling LLP, and David Cohen, an American Samoan who served as the highest ranking Pacific Islander in the George W. Bush Administration, represented by Jenner & Block LLP.  A group of prominent scholars of constitutional law and legal history, represented by Wilmer Cutler Pickering Hale and Dorr LLP, filed on behalf of neither party, but argued that the Insular Cases should not govern this case.  All court filings are available here.

It is expected that the D.C. Circuit will rule on the Plaintiffs’ petition for rehearing en banc in the next several months.  If the petition is granted, a new round of briefing may follow.  If the petition is rejected, then plaintiffs will consider whether to appeal the panel’s decision to the U.S. Supreme Court.



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