Fitisemanu v. United States
| Decision Date | 15 June 2021 |
| Docket Number | Nos. 20-4017 & 20-4019,s. 20-4017 & 20-4019 |
| Citation | 1 F.4th 862 |
| Parties | John FITISEMANU; Pale Tuli; Rosavita Tuli; Southern Utah Pacific Islander Coalition, Plaintiffs - Appellees, v. UNITED STATES of America; U.S. Department of State; Antony Blinken, in his official capacity as Secretary of the U.S. Department of State; Ian G. Brownlee, in his official capacity as Assistant Secretary of State for Consular Affairs, Defendants - Appellants, and The Honorable Aumua Amata; American Samoa Government, Intervenor Defendants - Appellants. Virgin Islands Bar Association; American Civil Liberties Union; ACLU of Utah; Linda S. Bosniak; Kristin Collins; Stella Burch Elias; Sam Erman; Torrie Hester; Polly J. Price; Michael Ramsey; Nathan Perl-Rosenthal; Lucy E. Salyer; Katherine R. Unterman; Charles R. Venator-Santiago; Samoan Federation of America, Inc. ; Rafael Cox Alomar; J. Andrew Kent; Gary S. Lawson; Sanford V. Levinson; Christina Duffy Ponsa-Kraus; Stephen I. Vladeck; Congresswoman Stacey Plaskett; Congressman Michael F.Q. San Nicolas; Carl Gutierrez; Felix P. Camacho; Juan Babauta; Dr. Pedro Rossello; Anibal Acevedo Vila; Luis Fortuno; John De Jongh; Kenneth Mapp; Donna M. Christian-Christensen, Amici Curiae. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Joseph H. Hunt, Assistant Attorney General, Washington, DC (John W. Huber, United States Attorney, Salt Lake City, UT, Sharon Swingle, Attorney, and Brad Hinshelwood, Attorney, United States Department of Justice, Washington, DC with him on the briefs) for Defendants-Appellants.
Michael F. Williams, Kirkland & Ellis LLP, Washington, DC (Kathleen A. Brogan, Britney A. Lewis, Lauren N. Beebe, and Thomas S. Vaseliou, Kirkland & Ellis LLP, Washington, DC with him on the briefs) for Intervenor Defendants-Appellants.
Matthew D. McGill, Gibson, Dunn & Crutcher LLP, Washington, DC (Jacob T. Spencer, Jeremy M. Christiansen, and John H. Heyburn, Gibson, Dunn & Crutcher LLP, Washington, DC, Steven S. Rosenthal and Neil C. Weare, Loeb & Loeb LLP, Washington, DC, and Charles V. Ala'ilima, The Law Offices of Charles V. Ala'ilima, PLLC, Nu'uuli, AS with him on the brief) for Plaintiffs-Appellees.
David M. Zionts, Covington & Burling LLP, Washington, DC (Patricio Martínez-Llompart, Cristina Álvarez, and Nandini Singh, Covington & Burling LLP, Washington, DC with him on the brief) for amici curiae Representatives of Guam, the Northern Mariana Islands, Puerto Rico, and the US Virgin Islands.
Paul R.Q. Wolfson, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, DC (Andres C. Salinas, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, DC with him on the brief) for amici curiae Constitutional Law Scholars.
Adriel I. Cepeda Derieux, American Civil Liberties Union, New York, NY (Alejandro A. Ortiz and Celso Javier Perez, American Civil Liberties Union, New York, NY, and John Mejia, Brittney Nystrom, and Valentina De Fex, ACLU of Utah, Salt Lake City, UT with him on the brief) for amici curiae American Civil Liberties Union and ACLU of Utah.
David A. Perez, Perkins Coie LLP, Seattle, WA (Aaron J. Ver, Perkins Coie LLP, San Francisco, CA with him on the brief) for amicus curiae Samoan Federation of America, Inc.
Dwyer Arce, Kutak Rock LLP, Omaha, NE for amicus curiae Virgin Islands Bar Association.
Before TYMKOVICH, Chief Judge, LUCERO, Senior Circuit Judge, and BACHARACH, Circuit Judge.
For over a century, the land of American Samoa has been an American territory, but its people have never been considered American citizens. Plaintiffs, three citizens of American Samoa, asked the district court in Utah to upend this longstanding arrangement and declare that American Samoans have been citizens from the start. The district court agreed and so declared. Appellants, the United States federal government joined by the American Samoan government and an individual representative acting as intervenors, ask us to reverse the district court's decision. We conclude that neither constitutional text nor Supreme Court precedent demands the district court's interpretation of the Citizenship Clause of the Fourteenth Amendment.
We instead recognize that Congress plays the preeminent role in the determination of citizenship in unincorporated territorial lands, and that the courts play but a subordinate role in the process. We further understand text, precedent, and historical practice as instructing that the prevailing circumstances in the territory be considered in determining the reach of the Citizenship Clause. It is evident that the wishes of the territory's democratically elected representatives, who remind us that their people have not formed a consensus in favor of American citizenship and urge us not to impose citizenship on an unwilling people from a courthouse thousands of miles away, have not been taken into adequate consideration. Such consideration properly falls under the purview of Congress, a point on which we fully agree with the concurrence. These circumstances advise against the extension of birthright citizenship to American Samoa. We reverse.
American Samoa is one of several unincorporated territories1 of the United States. It is the only one whose inhabitants are not birthright American citizens. Congress has conferred American citizenship on the peoples of all other inhabited unincorporated territories—Puerto Rico, Guam, the U.S. Virgin Islands, and others—but not the people of American Samoa. American Samoans are instead designated by statute "nationals, but not citizens, of the United States." 8 U.S.C. § 1408.
As a result, American Samoans are denied the right to vote, the right to run for elective federal or state office outside American Samoa, and the right to serve on federal and state juries. They are, however, entitled to work and travel freely in the United States and receive certain advantages in the naturalization process. Plaintiffs, three American Samoans who are now residents of Utah but remain "non-citizen nationals" of the United States, contend that this arrangement violates the Citizenship Clause of the Fourteenth Amendment.2 They seek American citizenship on the basis of their birth in American Samoa. Opposing them is the United States government, which argues the Citizenship Clause does not extend so broadly as to encompass unincorporated territories. Also in opposition are the intervenor-defendants ("Intervenors"), elected officials representing the government of American Samoa, who argue that not only is the current arrangement constitutional, but that imposition of birthright citizenship would be against their people's will and would risk upending certain core traditional practices.
We preliminarily review two topics in more depth: A) the relevant history and characteristics of American Samoa; and B) the history of American citizenship as it has been applied to American territories.
American Samoa encompasses the eastern islands of an archipelago located in the South Pacific, approximately 2,500 miles due south of Hawaii. Its current population is 49,437; another 204,640 individuals of Samoan descent live in the United States. In 1900, its tribal leaders ceded sovereignty to the American government. See 48 U.S.C. § 1661. The documents effectuating this cession did not specify how the territory would be governed, and were silent on whether American Samoans were, or would ever be, American citizens.3 Since then, American Samoans have owed "permanent allegiance" to the United States but have never been American citizens. 8 U.S.C. § 1101(21), (22).
Not unlike other colonial relationships, the nature of the relationship between American Samoa and the United States is contested. The traditional view is that the relationship has been largely amicable. According to this narrative, American Samoa voluntarily ceded sovereignty to the United States, and the United States has since provided protection from external interference while largely staying out of the internal affairs of the territory. See, e.g., U.S. Dep't of State, U.S. Relations with American Samoa (2020). More recent scholarship has questioned this account, arguing that the relationship has been built more on domination than friendship. See, e.g., Kirisitina Gail Sailiata, The Samoan Cause: Colonialism, Culture, and the Rule of Law (2014) (Ph.D. dissertation, University of Michigan). Whatever the origin, there is no doubt that the relationship has profoundly influenced the culture of American Samoa. American Samoans have particularly high enlistment rates in the American military, for example, and its constitution recognizes freedom of speech, freedom of religion, due process of law, and other basic civil rights. Revised Const. of Am. Samoa art. I, §§ 1–16.
Notwithstanding these cultural imprints, the people of American Samoa have maintained a traditional and distinctive way of life: the fa'a Samoa. It is this amalgam of customs and practices that Intervenors argue would be threatened if birthright citizenship were imposed. For example, the social structure of American Samoa is organized around large, extended families called ‘aiga. These families are led by matai, holders of hereditary chieftain titles. The matai regulate the village life of their ‘aiga and are the only individuals permitted to serve in the upper house of the American Samoan legislature. Land ownership is predominantly communal, with more than 90% of American Samoan land belonging to the ‘aiga rather than to any one individual. According to one local official, "Cultural identity is the core basis of the Samoan people, and communally owned lands are the central foundation that will allow our cultural identity to survive in today's world." Line-Noue Memea Kruse, The Pacific Insular Case of American Samoa 2 (2018). There are also racial restrictions on land ownership requiring landowners to be at least 50% American Samoan. Am. Samoa Code Ann. § 37.0204(a)–(b). Intervenors worry that these and other traditional elements of the American...
To continue reading
Request your trial
-
Hueter v. Kruse
...for American Samoa, making American Samoa the only inhabited territory that remains "unorganized." See Fitisemanu v. United States , 1 F.4th 862, 875 n.15 (10th Cir. 2021). Consequently, inhabitants of American Samoa are not U.S. citizens, but U.S. nationals. Tuaua v. United States , 788 F.......
-
United States v. Vaello Madero
...leaves the Insular Cases on the books. Lower courts continue to feel constrained to apply their terms. See, e.g. , Fitisemanu v. United States , 1 F.4th 862, 873 (C.A.10 2021) ; Tuaua v. United States , 788 F.3d 300, 306–307 (C.A.D.C. 2015). And the fictions of the Insular Cases on which th......
-
Hueter v. Kruse
...for present purposes, Congress has not created or delegated authority to a territorial government in American Samoa. Fitisemanu, 1 F.4th at 875 n.15 (stating that organizing legislation, American Samoa is “especially subject to American political control”). Instead, American Samoa remains u......
-
Hueter v. Kruse
...most provisions of the United States Constitution do not apply in American Samoa at all. Downes, 182 U.S. at 279, 287, 342; Fitisemanu, 1 F.4th at 869-70. In addition, the presumption of concurrent jurisdiction is, in part, grounded in the dual sovereignty of the states and the federal gove......
-
The Insular Cases Run Amok: Against Constitutional Exceptionalism in the Territories.
...Boumediene v. Bush, 553 U.S. 723 (2007). (34.) Tuaua v. United States, 788 F.3d 300 (D.C. Cir. 2015) ; Fitisemanu v. United States, 1 F.4th 862 (10th Cir.), reh'g en banc denied, 20 F.4th 1325 (10th Cir. (35.) Tuaua, 788 F.3d at 310; Fitisemanu, 1 F.4th at 880. In Fitisemanu, Judge Luceros ......
-
Indigenous Subjects.
...426 F. Supp. 3d 1155, 1196 (D. Utah 2019) (holding that American Samoans are U.S. citizens, a holding that was reversed on appeal), rev'd, 1 F.4th 862 (10th Cir. (129.) See ERMAN, supra note 36. (130.) See, e.g., Neil Weare, Why the Insular Cases Must Become the Next Plessy, HARV. L. REV. B......
-
Aurelius' Article III Revisionism: Reimagining Judicial Engagement with the Insular Cases and "The Law of the Territories".
...(280.) Kalhan, supra note 273. (281.) Transcript of Oral Argument, supra note 245, at 9 (Gorsuch, J.). (282.) 1 F.4th 862 (10th Cir. (283.) In a recent interview, an attorney for the Fitisemanu plaintiffs recounted how the same stateside attorney who "c[ame] up with the idea" for the Tuaua ......
-
Third-Class Citizens: Unequal Protection Within United States Territories.
...with American Samoan's position native-born American Samoans should not have natural citizenship rights); Fitisemanu v. United States, 1 F.4th 862, 874 (10th Cir. 2021) (agreeing "Insular Cases, despite their origins, allow us to respect the wishes of the American Samoan (49.) See supra tex......