Three American Samoans living in Utah are asking the 10th Circuit Court of Appeals to review its 16 June ruling, which held that birthright citizenship does not apply to American Samoa.
That appeals court's decision reversed a federal court ruling from 2019, in Fitisemanu versus the United States, that recognised American Samoans as US citizens.
The Citizenship Clause of the Fourteenth Amendment guarantees that "ll persons born or naturalised in the United States, and subject to the jurisdiction thereof, are citizens of the United States..." But because of a federal law labelled by some as discriminatory, people born in American Samoa are labelled as "nationals, but not citizens, of the United States".
In their June decision, the panel for the Tenth Circuit relied on an expansive interpretation of the much-criticised Insular Cases [a series of US Supreme Court opinions on US territories] and ignored the clear command of the Supreme Court in the 1898 Wong Kim Ark decision to rule that citizenship is not a "fundamental right" in overseas territories and depends on Congress' whims, not the Constitution.
The decision puts at risk the citizenship status of more than 3.5 million Americans living in the territories, since the federal government only recognises those born in other territories as US citizens by statute.
"Just last year the Supreme Court made clear that the Insular Cases should not be expanded, yet that is precisely what the divided Tenth Circuit panel did in denying citizenship to our clients," said Neil Weare, president and founder of Equally American, which represents the Fitisemanu plaintiffs and advocates for equality and civil rights in US territories.
"The full Tenth Circuit should review the panel's decision, both because it ignores clear Supreme Court precedent, and because citizenship is the foundation of who we are as Americans. It is absurd that John Fitisemanu is recognised as a passport-holding American, but not a US citizen."
The divided Tenth Circuit panel also grounded its ruling on an assumption that there is a "preference against citizenship" based on opposition to the case from elected officials in American Samoa, and unsupported concerns that recognition of citizenship might impact cultural and political self-determination in American Samoa.
"American Samoans are proud to be Americans and do not wish to establish any political relationship with the United States other than under the sovereignty deeded by their forefathers and represented by the US flag," said Charles Ala'ilima, a prominent American Samoan attorney who represents the Fitisemanu plaintiffs.
"This sentiment is expressed by all American Samoans I have encountered in my lifetime, including those now opposing full citizenship. If that is the case then people born in American Samoa have a US constitutional right to be recognised as full US citizens, and not this lesser status that is now assigned them at birth."
Ala'ilima said concerns that citizenship could threaten American Samoa's land and culture are misplaced, and the ongoing denial of US citizenship to American Samoans has real-life consequences for thousands of American Samoans every day.
Weare said Equally American: "has heard directly from more than a thousand American Samoans living both in American Samoa and throughout the 50 states who are denied recognition of citizenship and want to be recognised as citizens without having to naturalise.
"They have shared how being denied citizenship has made them feel, and how it has impacted their lives. Hundreds of the American Samoans we've heard from are denied citizenship despite distinguished military careers."
-Pacific Island Times