Biden to Supreme Court: Do Not Grant U.S. Citizenship to American Samoans
Fitisemanu v. U.S. could overturn the racist, imperialist Insular Cases, but partisan divides and misunderstandings of American law and policy after Dobbs could torpedo the opportunity.
This article is Part I 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 II, and here for Part III.
For the past one hundred and twenty years, U.S. Government policy towards American territories (or more properly, American colonies) has been largely controlled by the “Insular Cases,” a series of lawsuits that made it to the U.S. Supreme Court, and which, for the first time, placed American territories in a decidedly second class status in comparison to the rest of the country. In a nutshell, the cases created a court delineated distinction between “incorporated” territories—those that Congress clearly indicated were destined for statehood, and “non-incorporated” territories—those that were not destined for statehood, because of the racial and cultural makeup of the people in those territories. The court made this distinction in order to declare that the U.S. Constitution fully applies to incorporated territories, as well as to declare that the Constitution does not fully apply in the unincorporated territories. The court held that Congress could extend these constitutional provisions to the territories, but unless they did so expressly, much of the document did not apply. One of the provisions of the Constitution which the court determined did not apply to the territories was the 14th Amendment, which declared 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.” In other words, people born in U.S. territories do not automatically become U.S. citizens unless Congress specifically says so.
Because of this holding, Congress has acted from time to time to extend citizenship to those people born in U.S. Territories, and in fact has extended that birthright citizenship to all of the territories except one: American Samoa. Instead, Congress, in the Immigration and Nationality Act (codified at 8 USC 1408), has designated people born in American Samoa as United States Nationals, but not citizens. This means, among other things, that American Samoans cannot vote in a general election for President of the United States (though they can vote in primary elections). Just like every other U.S. territory, American Samoans also do vote for a non-voting member of the U.S. House of Representatives, and they also have their own territorial legislature and governor, whom they vote for. Beyond elections, American Samoans are issued U.S. Passports, and can travel, reside, and work in the rest of the United States and its territories without restrictions, but they are still not U.S. Citizens. However, they are able to apply for citizenship, and the government expedites their applications for citizenship ahead of other non-citizens because of their status as U.S. nationals.
Many in American Samoa and elsewhere have objected to this scheme due to its discriminatory nature. Further, those who are aware of the Insular Cases, which has allowed this discriminatory framework to exist, have argued that American Samoans deserve citizenship like everyone else, and that the Insular Cases should be overturned. For those unaware of the content of the Insular Cases, the opinions in these cases are chock full of racist and imperialist language, which declare that non-white peoples are generally savages who are incapable of self-government, and on this basis, are peoples whose territories are unfit for statehood or “incorporation” into the United States. This language, in 2022, is extremely shocking to most who read it, but it should be even more shocking that these cases still form the basis of United States policy towards the territories to this very day.
That the Insular Cases still form the basis of American policy towards the territories is made obvious by the recent U.S. Supreme Court case of United States v. Vaello Madero. Vaello Madero, a U.S. Citizen born in Puerto Rico, moved to the U.S. mainland, and while there, began collecting Social Security Disability payments. Vaello Madero then moved back to Puerto Rico, and continued to collect those payments. However, U.S. Law, based upon the Insular Cases, prohibits residents of Puerto Rico from collecting Social Security Disability. Once the Social Security Administration finally realized that they were improperly sending Vaello Madero SSDI payments, they sued him in order to recover those funds. Vaello Madero challenged their suit, and appealed it all the way to the U.S. Supreme Court. Vaello Madero lost his case, because U.S. Law is quite clear on this matter, and he did not ask the court to overturn the Insular Cases, which these laws are based upon.
However, Justice Neil Gorsuch, who, despite being a Trump appointee, is passionate about indigenous rights and federal relations, wrote a concurrent opinion on Vaello Madero’ case. In that opinion, he indicated that while he voted with the majority because the state of the law is clear, he also specifically invited cases that specifically seek to overturn the Insular Cases, declaring that “the Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law.” Gorsuch, in writing this statement, knew that there were cases in the pipeline to the court that could indeed heed his invitation to ask the court to overturn the Insular Cases.
This invitation was immediately seized upon by John Fitisemanu, an American Samoan and U.S. National, who has asked United States courts to recognize citizens of American Samoa as United States citizens. Fitisemanu also asked the court, citing Vaello Madero, to overturn the Insular Cases. The court, as it has been increasingly known to do for many years, asked the Biden Administration’s Solicitor General—the government’s chief attorney that represents the administration in court—for its opinion in this matter. The court often gives significant weight to the Solicitor' General’s amicus brief; so much so, that the office is sometimes called “the tenth justice.”
Interestingly enough, the administration has asked the court not to intervene in this case, and instead leave this issue to Congress, which, of course, under the Insular Cases, is the final authority on these matters. For many, this position is difficult to understand, because the general political expectation is that Democrats would support citizenship. Likewise, many (but certainly not all) would also expect that a Trump appointee would oppose citizenship for American Samoa. One key to understanding this, I believe, is the reaction of many to the Dobbs case, which of course overturned Roe v. Wade.
In the wake of Dobbs, many, especially on the left, have argued that the Supreme Court has too much power. In this new political reality, it appears that the Biden Administration has determined that the optics of the court making a major decision regarding United States citizenship is a political danger that it cannot accept. If the court can first take away a well established right from 50% of Americans, and then can turn around and grant U.S. citizenship to American Samoans when, according to precedent, only Congress can do so, then it appears that instead of having its outsized power curtailed, it is instead continuing to expand its power. However, this analysis of the administration is incorrect.
The idea that only Congress can grant citizenship to residents of the territories came not from Congress, but from the court itself. This idea is foundational in the Insular Cases, which ruled that this question is a political one, and, of course, political questions are not justicable. However, if the courts created this untenable idea, based upon racist ideas about the suitability of colonized people to govern themselves, then it is incumbent on the court to undo this legal doctrine that it enacted. Further, while it is understandable that the Biden administration is concerned with politics, and especially with political optics in a post-Dobbs world, it must look past politics in order to do the right this in this situation. To fail to do so is not simply a political failure, but a moral one, and the legacy of the administration and the court will continue to be tarnished by racism and imperialism.
In a future post, I will address another dynamic further complicating this important case: misunderstandings of American law and policy, and direct legal analogies to solve questions of land tenure and protection.
Thanks for reading! I hope you will consider joining the conversation by leaving a comment.