American Samoa Territorial Government backs Biden, asks court to deny U.S. Citizenship to Samoans
Amicus Brief asking court to reject Fitisemanu v. U.S. is based on a faulty understanding of the legal underpinnings of Samoan communal land holdings.
This article is Part II of a series on the case Fitisemanu v. U.S., which has asked the U.S. Supreme Court to overturn the Insular Cases and grant birthright citizenship to American Samoans. Click here to read Part I, and here to read Part III.
Shortly after the Biden Administration asked the U.S. Supreme Court to reject Fitisemanu’s request to overturn the Insular Cases and grant American Samoans birthright United States Citizenship under the 14th Amendment, the Government of American Samoa, joined by U.S. Delegate to the House of Representatives Aumua Amata, filed an amicus brief backing the Biden Administration, asking the court to reject Fitisemanu’s claims. The territorial government and Delegate Amata, however, had very different reasons for asking the court to rule against Fitisemanu. While the Biden Administration wishes to preserve the status quo in order to keep questions of U.S. Citizenship in the territories under the control of Congress, Amata and the territorial government are much more concerned with preserving American Samoan culture (fa’a Samoa), and with it, the communal land tenure system that has persisted there since time immemorial.
The goals on the territorial government are, for the most part, much more meritorious than that of Biden’s Justice Department. Biden wishes to maintain Congress’ power over the American empire, while the territorial government wants to preserve its ancestral culture. I very much agree with the majority of the territorial government’s goals, and, as a scholar of American colonialism, I also very much empathize with their fears. However, I think these fears are largely based upon a misunderstanding of American law, which is a problem not just in American Samoa, but in all corners of the United States.
I first want to describe the territorial government’s objections in the most objective way possible, and then, after each objection, lay out my reasoning on why the court should, in fact, reject these objections and grant Fitisemanu’s request.
First, the territorial government claims that historically, Congress has never recognized the 14th Amendment as applying to “overseas territories,” and that doing so would be “forcing” United States citizenship upon the citizens of American Samoa. 1
The government, here, is making a specious argument, and doing so through lawyerly hairsplitting, by arguing that Congress has never believed that the 14th Amendment applied to “overseas territories.” The fact is, however, that legal distinctions between American territories within the continental United States and those territories outside the continent did not exist until the U.S. Supreme Court created such a distinction in response to the Insular Cases. Since Fitisemanu aims to overturn the Insular Cases, this argument is plainly disingenuous.
Second, the territorial government claims that the forced acceptance of United States citizenship upon the citizens of American Samoa, who are currently considered “United States nationals,” without the right to vote in federal elections (except for American Samoa’s delegate to the House of Representatives), would endanger fa’a Samoa (roughly translated as “the Samoan way of life,” or Samoan culture), and specifically, the land tenure system in the territory. Fa’a Samoa is described in the brief as “the essence of being Samoan, and includes a unique attitude toward fellow human beings, unique perceptions of right and wrong, the Samoan heritage, and fundamentally the aggregation of everything that the Samoans have learned during their experience as a distinct race.”2
However, granting birthright citizenship under the 14th Amendment will have no real affect upon fa’a Samoa. American Samoans, as stated above, are already U.S. nationals. They are issued U.S. Passports, they have a legal right to enter any portion of the United States, as well as the legal right to work in the United States. They are also entitled to expedited naturalization if they wish to obtain U.S. citizenship, which many American Samoans have. This, of course, allows them to vote in federal elections if they are residing in a state, and allows them to access social security and other federal benefits, if they are residing in a state (something that all U.S. citizens are denied if living in a territory). Ultimately, blanket U.S. citizenship will change nothing in American Samoa. The issue is simply one of equality and parity.
Third, The territorial government also claims that “any aspects of fa’a Samoa are wholly unlike anything in either the other territories or the continental United States, and this rich and unique cultural heritage permeates every level of Samoan society. Samoan households, for example, are notable for their organization according to large, extended families, known as ‘aiga. These extended families, under the authority of matai, or chiefs, remain a fundamental social unit in Samoan society.”3
While fa’a Samoa is a unique culture, just like any culture, its uniqueness is, in fact, not unique in the United States. Native American cultures are also unique, and indigenous peoples are very concerned about preserving their culture, heritage, sovereignty, and languages, which the United States government did its best to destroy. The same can be said about Native Alaskan and Native Hawaiian cultures, as well as the cultures of other colonized American citizens, including in Guam, the Federated States of Micronesia, Puerto Rico, and the other territories. Native Americans were explicitly excluded from citizenship in the Constitution because of their political allegiance to their indigenous nations, but Congress granted Native Americans blanket citizenship in 1924. While the U.S. Government has taken many hostile actions against indigenous cultures, granting Native Americans U.S. citizenship was not one of them.
Fourth, the territorial government’s key argument against Fitisemanu’s claims is that the communal holding of land, under the matai, is threatened by the wholesale granting of United States citizenship to American Samoans under the 14th Amendment. This is important because, as the High Court of American Samoa has found, the “whole fiber of the social, economic, traditional, and political pattern in American Samoa is woven fully by the strong thread which American Samoans place in the ownership of land.”4
Like the objection related to citizenship and Fa’a Samoa, the wholesale granting of citizenship will have no effect on Samoan communal land holdings. Like Samoan communal holdings, Native American lands are also held communally by the tribe, and legally, the U.S. Government holds the titles of these lands in trust for the benefit of indigenous nations. While Congress has in the past (before 1924) used U.S. citizenship as a way to break the ties between indigenous peoples and their land, this was not an automatic process. Congress specifically placed conditions relating to land allotments in the statutes that allowed Native Americans to become U.S. citizens before 1924. This would not occur if the court strikes down the Insular Cases, as the Constitution would apply in its entirety in all of the territories.
Fifth, the territorial government claims that if the court overturns the Insular Cases and grants birthright citizenship to American Samoans under the 14th Amendment, that the entirety of Fa’a Samoa is not only endangered, but that it also “would deprive the American Samoan people of their basic right to determine their own status through the democratic process.”5
This argument is also disingenuous. American Samoa became an American territory through two treaties: The Treaty of Cession of Tutuila, and the Treaty of Cession of Manu'a. These island chains were under control of different matai, and so had to be ceded to the United States separately. The history of these treaties is important, as is the language contained in them. The matais of Tutuila and Manu’a ceeded their land to the United States for several reasons, but chief among them was that they desired the privileges of United States citizenship for their people. In fact, the treaty language of the Cession of Manu’a specifically states:
2) It is intended and claimed by these Presents that there shall be no discrimination in the suffrages and political privileges between the present residents of said Islands and citizens of the United States dwelling therein, and also that the rights of the Chiefs in each village and of all people concerning their property according to their customs shall be recognized.
The fact of the matter is, the people of American Samoa already made the decision through their chosen representatives, the matais, to seek citizenship, and they ceded their land to the United States in exchange for that citizenship. Congress, however, has never kept the promise made in the treaty of cession. This is, in part, because once the matais signed the treaty, the Naval Commandant who oversaw U.S. governance of the islands not only failed to sign the treaty himself, but failed to send the treaty to Congress, which, in fact, did not ratify the treaty until 1930. The Matais made a fresh push for treaty ratification in 1930 because they were tired of being ruled over by a military government run by the Navy, and instead wanted their own civil government. This was enough of an embarrassment that Congress quickly ratified the treaties and appointed a civilian governor. However, the territory did not have a Constitution until 1960. The governor formed the Fono (the legislature) in1948, however, it existed only in an advisory until the creation of the Constitution by the U.S. Secretary of the Interior.
Sixth, the government of American Samoa claims that granting birthright citizenship to American Samoans would undermine the Matai system of governance (hereditary chieftains that govern day to day village life). Further, only Matai are allowed to be members of the upper house of the Samoan Fono (the territorial legislature). The territorial government argues that if all American Samoans were automatically United States citizens, instead of U.S. Nationals, that the equal protection and due process clauses of the Constitution could subject the requirements to stand for election to the upper house of the Fono to legal challenges.6 Specifically, the territorial government is concerned that birthright citizenship would make all provisions of the U.S. Constitution applicable within the boundaries of American Samoans.
This objection is both specious and problematic. As I have mentioned above, while American Samoans are not born as citizens, they are eligible for fast tracked citizenship, and many have become citizens. Granting birthright citizenship instead of requiring naturalization would not subject the procedures for appointment to the Fono. The real issue here, and, in reality, with many of the objections that are raised, is not that overturning the Insular Cases would grant citizenship, but that it would do away with the concept of “unincorporated territories,” instead, making it so that all provisions of the U.S. Constitution apply in all U.S. Territories equally. However, it is not at all clear that the full application of the Constitution would affect the Fono. States are guaranteed a republican form of government in the Constitution, while territories are not. In fact, the one incorporated territory where the Constitution fully applies, [INSERT NAME HERE], is uninhabited and does not have a republican form of government (nor does it have a provision for one), but is instead managed by the U.S. Department of Fish and Wildlife for the Department of the Interior.
That stated, there are a number of questions that should be asked about this objection, and there are several factors that could complicate the answer. First off—being mindful of the specter of colonialism—is it truly appropriate for a U.S. territory to have an upper chamber of their legislature that is hereditary instead of elected, considering the United States is, in fact, a democratic republic? Second, would the courts actually find that the Constitution prohibits this? Third, if it is found that it would be appropriate for the Fono to continue in its current state, what would the Constitutional and legal implications be for the American Samoan government?
On the first question, I have mixed feelings on this. Being a scholar of American colonialism and empire, I tend to empathize with indigenous, colonized peoples who desire their sovereignty, and I generally tend to think that indigenous governments under the thumb of the United States do not need to enact a truly republican government. However, as I mentioned above, there are several factors complicating this. First, the Fono has only existed since 1948, and it has only been an actual legislature with real power since 1960. In other words, this is not an institution which has existed since time immemorial. In fact, the term fono refers to conferences that the matais convened in order to discuss important matters and make decisions among themselves. These were informal, undemocratic institutions, and the current fono bears little resemblance to the historical, precolonial model, other than the name of the body. Second, as I mentioned above, the treaty that the matais of Manu’a signed heavily suggests that the matai had sought political parity for their people with rest of the United States. ***However, the treaties also state that the matai would remain in charge over their local villages and communal land [FACT CHECK].*** Together, these facts make this question very difficult to answer.
My first question is normative. My second question is legal. I suspect that the courts would in fact not find that the Constitution bars the fono from being hereditary. The U.S. Supreme Court, even outside the Insular Cases, has found that Congress has the Constitutional power to govern the territories, and that it has wide latitude in doing so. Additionally, because the matais signed a treaty guaranteeing their continued power,
Seventh, the territorial government argues that if the Constitution applies thoroughout American Samoa, that the communal holding of land, subject to the authority of the Matai, would be imperiled. However, the brief, while describing the various legal restrictions on the sale of land to non-Samoans that have been in place for the last century, fails to describe how citizenship would endanger communal land holding.7
Eighth, the government of American Samoa argues that universalizing U.S. Citizenship would endanger the religious dominance of Christianity in the country. Specifically, they fear that the Samoan practice of regular “Prayer Curfews,” where all members of society are required to be at home and engaging in Christian prayer, would be struck down if Samoans were granted birthright citizenship.8
Finally, the government of American Samoa contends that birthright citizenship being “imposed” upon the people would, in fact, be a violation of American Samoa’s right of self determination. They argue that Congress has continually respected the will of the American Samoan people and their political institutions in protecting their culture and political institutions, and that if the court were to overturn the Insular Cases and determine that the Constitution, including the 14th Amendment, applies to all U.S. Nationals on the island, that this would be a violation of their right to self determine their fate. Further, they argue that the people themselves have failed to form a consensus on the issue of U.S. citizenship, and so the status quo would in fact be preferable to the hazard of making all American Samoans U.S. Citizens. In fact, they state that the people of American Samoa "continue to evaluate their relationship with the United States through an effective democratic dialogue."9
Fitisemanu v. U.S., Brief amicus curiae of American Samoan Government and the Honorable Aumua Amata. 29 Aug 2022. United States Supreme Court, https://www.supremecourt.gov/DocketPDF/21/21-1394/236566/20220829125923506_2022-08-29%209am%20FINAL%20Fitisemanu%20BIO.pdf. PDF download, page 10.
Ibid, 6.
Ibid, 7.
Ibid.
Ibid, 12.
Ibid, 16.
Ibid, 16-17.
Ibid, 18-19.
Ibid, 19-20.