Thursday, September 29, 2022

Immigration Article of the Day: Citizenship, Assimilation, and the Insular Cases: Reversing the Tide of Cultural Protectionism at American Samoa by Jason Buhl

Citizenship, Assimilation, and the Insular Cases: Reversing the Tide of Cultural Protectionism at American Samoa by Jason Buhl. Seton Hall Law Review, Vol. 53, No. 3, 2023 


Notwithstanding the gravity of American sovereignty, the people of American Samoa have maintained a distinctive way of life: the fa’a Samoa. This resiliency reflects that American Samoa is in many ways the most unique of the five U.S. Territories, including the fact that its residents are the only Americans who do not automatically attain birthright citizenship. Although several petitioners have recently sought to challenge this arrangement, the American Samoa Government (ASG) argues that the imposition of citizenship would not only be against the will of the majority of American Samoans, but also constitute the tip of a slippery slope that would undermine local culture by flooding the islands with mainland normative values. For instance, the local Native Lands Ordinance would face enhanced scrutiny under the Equal Protection Clause, the territory’s chieftain-only senate would run afoul of Article I’s prohibition on titles of nobility, and the official observation of prayer would be in violation of the Establishment Clause. Two recent rulings by separate U.S. Courts of Appeals found against the petitioners on these and other grounds. Yet, while acknowledging that the ASG’s fears are justified, neither of the courts (nor any current scholarship) test that slippery slope argument in detail. This article fills that void by considering each of those arguments in the context of existing constitutional jurisprudence. Based on the experiences of other U.S. Territories and Indigenous Peoples, ample precedent suggests that the extension of citizenship would be followed by closer constitutional scrutiny in all three areas. Therefore, to allow for the preservation of cultural autonomy, the United States ought to maintain, improve, and maximize its ability to govern jurisdictions with the flexibility provided by the Territorial Clause of the U.S. Constitution. That may or may not mean the extension of statutory birthright citizenship if decided by the people of American Samoa themselves, which would still theoretically allow for the tailored application of mainland constitutional norms. It also may or may not mean continuance of the Insular Cases precedents, whose checkered legacy the Supreme Court must address in any event. Indeed, this article engages with those precedents on their 100th anniversary as well as offers commentary on Justice Gorsuch’s critical concurrence in the newest case in the line, United States v. Vaello Madero, 596 U.S. ___ (2022). Ultimately, although there are important livelihood-based improvements to be made in central-local relations, American democracy is sophisticated enough to allow for unique patterns of territorial governance so that assimilation need not follow the flag.


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