Fitisemanu v. United States, Nos. 20-4017 & 20-4019

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: LUCERO, Senior Circuit Judge.
• 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.
• Docket Number: Nos. 20-4017 & 20-4019
• Decision Date: 15 June 2021

1 F.4th 862

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.

Nos. 20-4017 & 20-4019

United States Court of Appeals, Tenth Circuit.

FILED June 15, 2021

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.

LUCERO, Senior Circuit Judge.

1 F.4th 864

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,

1 F.4th 865

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.

I

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.

1 F.4th 866

A

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...