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Are American Samoans American?

Saturday 11 June 2016

By CHRISTINA DUFFY PONSA JUNE 8, 2016

THE Supreme Court will soon decide whether to hear an appeal in Tuaua v. United States, which poses the question of whether the Citizenship Clause of the 14th Amendment applies to American Samoa. That this is a question at all is puzzling, and not just because it’s called American Samoa.

The 14th Amendment to the Constitution guarantees citizenship to “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.” The United States annexed the eastern half of a group of Pacific islands known as the Samoas at the end of the 19th century. As a result, those islands became American Samoa. Surely, people born in American Samoa are legally speaking born in the United States and therefore citizens by birth. Easy, right?

Not so easy. The answer is that no one knows for sure.

How is it possible that a question as basic as who is a citizen at birth under our Constitution remains unresolved in a place subject to the sovereignty of the United States? To understand, you have to dive into the muck that is the law of the United States territories.

When the United States closed the deal to annex American Samoa in 1899, it left open whether the islands had become part of the United States for purposes of citizenship. The previous year, the United States had defeated Spain in the Spanish-American War and had taken sovereignty over Spain’s former colonies — Puerto Rico, the Philippines and Guam.

It was left to the Supreme Court to figure out the constitutional relationship between these new territories and the rest of the United States. In the rhetoric of the day, must the Constitution “follow the flag”? In the Insular Cases of 1901, the court handed imperialists a victory. According to Downes v. Bidwell, the new territories belonged to the United States but were not necessarily a part of it. They could be governed as colonies, with fewer constitutional constraints. The places affected by the court’s ruling came to be known as “unincorporated” territories. Today, they include Puerto Rico, the Commonwealth of the Northern Mariana Islands, the United States Virgin Islands, Guam and American Samoa.

To be an unincorporated territory is to be caught in limbo: although unquestionably subject to American sovereignty, they are considered part of the United States for certain purposes but not others. Whether they are part of the United States for purposes of the Citizenship Clause remains unresolved.

By statute, persons born in all of the unincorporated territories except American Samoa are citizens at birth: In American Samoa, you become a “national,” not a citizen. Congress originally refused to give the inhabitants of the new territories citizenship, but the court decided that they weren’t quite foreigners, either. Eventually, the State Department came up with the label “nationals.” Although Congress later extended statutory citizenship to other territories, American Samoans remained “nationals,” in part to accommodate their cultural distinctiveness.

Yet if American Samoa is part of the United States under the 14th Amendment, then this arrangement obviously violates the Citizenship Clause.

The painful colonial politics of the United States territories often feature deep internal divisions, further reducing their already weak leverage. The Tuaua case (in which I am an author of an amicus brief) is no exception. The American Samoan plaintiffs seeking constitutional birthright citizenship have found themselves at odds with the American Samoan government, which intervened in the case on the side of the United States.

The plaintiffs in Tuaua, including several veterans of the American military, describe the discrimination American Samoans face if they move to the mainland United States (which as “nationals” they have the right to do). Because of their lack of citizenship, they are ineligible for many Civil Service jobs, disadvantaged in sponsoring family members for immigration and denied the right to vote.

Yet the American Samoan government opposes citizenship for American Samoans on the ground that it would threaten their cultural practices — an argument more emotionally than legally compelling, since the constitutional provisions that could threaten these practices, like the First Amendment’s religion clauses, have nothing to do with birthright citizenship.

The United States presumably has less interest in denying citizenship to American Samoans than in defending the validity of the underlying legal regime that was constructed to allow the United States to project power in its territories and abroad with fewer constitutional constraints.

Whatever the answer to the question raised in Tuaua is, it is long overdue. To be subjected to uncertainty with respect to something as fundamental as one’s citizenship is in and of itself a severe harm. Even in the other territories, where statutory birthright citizenship has provided a makeshift solution for many decades, doubt, confusion and anxiety over the extent to which citizenship is constitutionally guaranteed have persisted for more than a century.

The 14th Amendment is supposed to protect people not only from arbitrary and unjust denials of their citizenship, but from uncertainty about whether they are citizens at all. Both the insult of second-class status and the injury of uncertainty are the ugly legal legacies of 19th century American expansionism. The court should hear the Tuaua appeal and clarify the scope of the Citizenship Clause once and for all.

Christina Duffy Ponsa is a law professor at Columbia and an editor of “Foreign in a Domestic Sense: Puerto Rico, American Expansion, and the Constitution.”

A version of this op-ed appears in print on June 8, 2016, on page A21 of the New York edition with the headline: Are American Samoans American?.

See online: Are American Samoans American?