Tuesday, June 14, 2016

Supreme Court Declines Review on Question on the Application of the Citizenship Clause to American Samoa by Rose Cuison Villazor


Yesterday, the Supreme Court declined to grant cert to Tuaua v. United States.

As Professor Christina Duffy Ponsa aptly explained in her NY Times op-ed last week, the case addressed the question whether American Samoans are U.S. citizens at birth under the Citizenship Clause.  Put differently, does the Citizenship Clause apply in American Samoa

The Citizenship Clause of the Fourteenth Amendment provides that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”  Accordingly, persons born in one of the fifty states or the District of Columbia are considered U.S. citizens under the Citizenship Clause.  Those who are born in the following four U.S. territory—Puerto Rico, Guam, the Virgin Islands and the Commonwealth of the Northern Mariana Islands—also acquire citizenship.  Their citizenship, however, is based not on the Constitution but congressional statutes.  (It should be noted that members of American Indian tribes also obtain citizenship not under the Citizenship Clause but by statute as well.)

Yet, not every one born on U.S. soil gain citizenship at birth.  In particular, persons born in American Samoa, also a U.S. territory, do not acquire citizenship but rather the status of non-citizen national or U.S. national at birth.  (American Samoa has been a territory of the United States since 1900).  As nationals, American Samoans do not visas to enter the United States because, after all American Samoan is part of the United States.  For the same reason, they cannot be deported or removed.  Thus, in some ways, they are like U.S. citizens. 

But U.S. citizens they are not.  As non-citizen nationals, American Samoans cannot vote or serve on a jury.  They do not have the right to petition their immediate relatives to immigrate to the United States.  They are also precluded from federal and state jobs that require U.S. citizenship or lawful permanent resident as a condition of employment. 

Four years ago, individual American Samoans filed a lawsuit against the United States claiming that they are citizens under the Citizenship Clause.  Detailed information about the plaintiffs and the case are available here

The plaintiffs have been unsuccessful, having lost in the district court in June 2013 and, two years later, in the U.S. Court of Appeals for the District of Columbia

In rejecting the plaintiffs’ citizenship claim, the DC Circuit in Tuaua v. United States, 788 F.3d 300 (D.C. Cir. 2015), held that the Citizenship Clause is “textually ambiguous” as to whether “in the United States” includes the unincorporated territories of the United States, which of course includes American Samoa.  Relying on the Insular Cases, the court held that jus soli citizenship is not a fundamental right. 

 Additionally, the court refused to “impose citizenship by judicial fiat.”  Id. at 302. In particular, the court noted that the American Samoan government opposed the interpretation of the Citizenship Clause as being applicable to American Samoa and the potential negative impact it would have on the American Samoan culture and political life. 

Tuaua touches on a number of important issues, including the ongoing relevance of the Insular Cases and how one becomes (or excluded from becoming) a member of the American polity.  It also shows that the line between the citizen and the “alien” is not such a hard line.  Instead, American Samoans demonstrate that some Americans are neither citizens nor aliens but are rather interstitial or in-between citizens.  (I discuss the concept of “interstitial citizenship” here

Importantly, it is critical to understand what the Court’s refusal to hear the case means for the individual plaintiffs who filed the case: they remain Americans with “second class” status.  To be sure, these American Samoans may apply for naturalization by paying the hefty fee of $680 and taking the oath of citizenship.  When they do, they will pledge their allegiance to the flag of the United States, which, ironically, is something that they have done for years as American nationals.

Rose Cuison Villazor



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