By Fili Sagapolutele
Say birthright citizenship by judicial fiat would jeopardize fa'a Samoa
Attorneys for the American Samoa Government and Congressman Faleomavaega Eni have both called on the federal appeals court in Washington D.C. to affirm the lower court’s decision dismissing the citizenship lawsuit filed by five American Samoans and a California based organization.
ASG and Faleomavaega made the argument in their 57-page brief as intervenors or in the alternative, amici curiae, or friends of the court. Local resident Leneuoti Tuaua is the lead plaintiff in the case, which argues that the U.S. Constitution gives people born in American Samoa the right to become automatic citizens of the U.S. instead of being U.S. Nationals.
The State Department — a defendant in the case — has disagreed and argues that only the U.S. Congress has the authority to grant citizenship to outlying territories such as American Samoa.
In their joint brief in support of the defendants, ASG and Faleomavaega argue that the question of whether birthright citizenship should extend to the people of American Samoa is for the people of American Samoa — not for the Courts — to decide.
In every other case in which people born in overseas territories were granted birthright citizenship, it has been Congress, not the courts, who made the decision, they say.
“There simply is no legal basis for upsetting one hundred years of precedent indicating that the Citizenship Clause does not apply in every territory subject to the jurisdiction of the United States,” the brief states. “Nor would doing so make any sense.”
“Many aspects of the fa’a Samoa — the Samoan way of life — are wholly unlike anything either in the other territories or the continental United States, and this way of life and foundational, cultural institutions would be jeopardized if subjected to scrutiny under the Fourteenth Amendment,” they state.
They also point out that American Samoa is unique among the territories of the United States.
In contrast to other former colonies, “American Samoa has never been conquered, never been taken as a prize of war, and has never been annexed against the will of [its] people.
“Instead, American Samoa’s tribal leaders, the matai, voluntarily ceded sovereignty to the U.S. Government in 1900,” the brief says, adding that although American Samoa has adopted many of the governing values of the U.S., “it retains a vibrant and unique culture, the Samoan way of life or fa’a Samoa.”
ASG and Faleomavaega also point out that although the people of American Samoa are proud of their relationship with the United States, “they have never come to a consensus about whether they should ask for Congress to grant them citizenship at birth.
“Instead, people born in American Samoa are U.S. nationals, not U.S. citizens, by birth. They owe allegiance to the United States, are able to enter the United States freely, and may apply for U.S. citizenship without satisfying the requirements of permanent residence. Many American Samoans also serve with distinction in the U.S. Armed Forces,” they say.
The argument notes that courts have refused to apply the Citizenship Clause to other territories for over a century.
“That precedent should be followed with respect to American Samoa,” they state. “The Supreme Court and this Circuit have repeatedly emphasized that longstanding precedent should only be overruled in limited situations, such as when it has proven unworkable.”
According to ASG and Faleomavaega, “Birthright citizenship by judicial fiat would upend this longstanding relationship and jeopardize the fa’a Samoa. The traditional way of life in American Samoa would likely face heightened scrutiny under the United States Constitution if the scope of the Citizenship Clause were read to reach American Samoa.”
“Most problematically, the communal land system at the heart of the fa’a Samoa is protected by Samoan law restricting the sale of community land to anyone with less than fifty percent racial Samoan ancestry,” they says.
“This restriction is consistent with practice going back to when America assumed possession of American Samoa in 1900 and Commander B.F. Tilley prohibited the alienation of land to non-Samoans,” they pointed out.
And as experience in other territories shows, even clear protections for traditional practices are quickly circumscribed when courts begin to scrutinize the rights of citizens under the Equal Protection Clause.
For example, the pair pointed out that just this last May, the federal court in the Commonwealth of the Northern Mariana Islands struck down the Commonwealth of the Northern Mariana Islands’ (CNMI’s) laws restricting voting in constitutional referenda to the indigenous people of CNMI (known as Chamorros and Carolinians).
Nevertheless, the CNMI federal court found that “[a]ll citizens have an equal interest in whether they are entitled to buy real property, and on what terms,” according to ASG and Faleomavaega — referring to a provision of the court’s ruling.
The pair include a footnote that perhaps this is why CNMI is the only territory not represented in Plaintiffs amici filings for the appeal’s court.
ASG and Faleomavaega further point out that American Samoa has worked closely with Congress to maintain a deliberate distance between the territory and the laws of the United States.
“It has done so because this distance is necessary to respect the cultural autonomy of American Samoa and its way of life,” they said. “If the courts bridge this distance with a novel application of the Citizenship Clause it would effectively decide the political status of American Samoa without any democratic input.”
“Ultimately, a decision for citizenship is a decision for ‘statehood’,” they say, adding that the pair cannot think of any example of a territory that was deemed part of the United States for constitutional citizenship purposes where the result has been anything other than closer union. Any such decision must be made by Congress and the people of American Samoa.”
The pair made clear to the court that Faleomavaega has long advocated that the people of American Samoa put serious thought into their status with the United States.
Among the options currently available to American Samoa are closer relationship (like Puerto Rico or the CNMI), Free Association (like the Marshall Islands or the Federated States of Micronesia), or even independence.