American Samoans’ lack of U.S. citizenship may be unconstitutional

They are called American Samoans. But many residents of the U.S. territory — an archipelago in the South Pacific Ocean — don’t feel American. That’s because people born in American Samoa are not U.S. citizens unless one of their parents is a citizen.

A lawsuit filed in Utah last month against the State Department and former Secretary of State Rex Tillerson seeks to change the American Samoans’ status from noncitizen U.S. nationals to citizens.

The State Department’s policy and practice of refusing to recognize birthright citizenship of people born in American Samoa “violates the Fourteenth Amendment,” according to the lawsuit. This article of the U.S. Constitution states that all people born in the U.S. “and subject to the jurisdiction thereof,” are citizens.

“That is not dependent on congressional grace,” said Neil Weare, the attorney leading the suit and president of Equally American, a nonprofit group that advocates for equality and civil rights for Americans living in U.S. territories.

Weare said the U.S. government had given American Samoans “a badge of inferiority” that diminishes their standing in their communities and in the nation as a whole.

“This continuation of a second-class or kind of caste system in the United States today is completely at odds with the citizenship clause of the 14th Amendment,” he said.

Officials at the State Department declined to comment because the case was ongoing.

Here’s some clarification on the status of American Samoans:

Q: Why is it that people born in other U.S. territories are citizens at birth but American Samoans are not?

A: “It’s kind of a piling-on of circumstances that have led to American Samoa being the odd island out,” said Sam Erman, an expert in constitutional law, legal history and the Supreme Court at USC.

Initially, no U.S. territorial island residents received citizenship, Erman said. A series of Supreme Court opinions in the early 1900s, known as the “Insular Cases,” established different rules for “incorporated territories” such as Arizona and New Mexico, which were considered to be en route to becoming U.S. states, and for “unincorporated territories,” which were not. There are now five inhabited unincorporated territories — Puerto Rico, Guam, the U.S. Virgin Islands, the Northern Mariana Islands and American Samoa.

The unincorporated territories were never expected to have a shot at statehood or citizenship, until Congress decided to add them on a case-by-case basis over the years, Erman said.

The change in status has not happened for American Samoa, a cluster of islands some 2,600 miles southwest of Hawaii with a population of about 55,600 people. American Samoa leadership includes a governor and a nonvoting delegate to Congress. A U.S. territory since 1900, American Samoa is different from Samoa, a nearby independent nation.

“In order to get citizenship you need to have the sense among the U.S. Congress that the population on the island wants the citizenship and you have to have a U.S. Congress willing to give the citizenship,” Erman said. “Those haven’t aligned yet for American Samoa.”

Q: Why do some American Samoans feel that as U.S. nationals they have second-class status?

A: American Samoans are not allowed to vote in federal, state or local elections and can’t run for elected office, serve on a jury or apply for certain government jobs that require the candidates to be U.S. citizens.

Noncitizen nationals are also treated less favorably when it comes to sponsoring foreign relatives for immigrant visas, the lawsuit says. A disclaimer on their passports announces that “the bearer is a United States national and not a United States citizen,” which many American Samoans find insulting because it makes them feel like they are foreigners.

Like other eligible permanent residents, American Samoans can apply to become citizens, but the process is long and costly — $725, not counting attorney fees. And acquiring citizenship is not guaranteed because although American Samoans are considered to be American nationals, “they are treated the same as foreign nationals for most aspects of the naturalization process,” according to the complaint.

The lawsuit was filed on behalf of John Fitisemanu, Pale Tuli, Rosavita Tuli and the Southern Utah Pacific Islander Coalition, a nonprofit organization that advocates for greater empowerment of the Pacific Islander community in Southern Utah.

Fitisemanu, 53, a healthcare industry worker and the suit’s lead plaintiff, said in court filings that the label of “noncitizen national” caused him “emotional anguish.” He said he was unable to vote in Utah because of his status and lamented being subjected to negative comments “from others questioning my ‘choice’ not to vote.”

A husband and father of three children, Fitisemanu was born in Tafuna, a village on the east coast of American Samoa’s Tutuila Island. He moved to Hawaii during high school and has resided in Utah since 2000.

Tuli, 24, who works as a garbage and recycling collector for a private contractor, was born in the American Samoa capital of Pago Pago and moved to Utah in 2014. He said in court filings that being a noncitizen had prevented him from pursuing a career as a police officer.

Tuli, who is married to fellow plaintiff Rosavita Tuli, regrets not being able to sponsor his aging parents to relocate to the U.S.; noncitizen nationals are not allowed to apply for immigration visas for their parents.

None of the three individual plaintiffs had applied to be naturalized as U.S. citizens, Weare said.

Q: How connected is American Samoa to the U.S. mainland?

A: The U.S. Navy administered American Samoa for its first 51 years as a U.S. territory, giving it limited self-governance, according to the lawsuit. In 1967, the U.S. approved the Constitution of American Samoa. In 1977, after agitating, the territory got its first elected governor, according to the American Samoa government website. In 1981 American Samoans elected their first nonvoting delegate to serve in the U.S. House of Representatives.

The territory is home to numerous federal agency offices, the education system has a curriculum that reflects U.S. educational standards, and American Samoans have served in the U.S. military since first becoming part of the U.S., with high enlistment rates, according to the lawsuit.

“Everyone who was born (in American Samoa) after 1900 was born under the U.S. flag owing allegiance to the United States,” said Charles Alailima, an American Samoan attorney with offices in American Samoa and the Seattle area. “They had no allegiance to any other place. They were born with the obligation and loyalty to the United States.”

Alailima was born in American Samoa but is a U.S. citizen because his mother was a U.S. citizen. The 2010 U.S. census reported 109,637 American Samoans in the United States, or 184,440 when people with partial American Samoan ancestry were included.

People of American Samoan heritage in the public eye include Tulsi Gabbard, who has represented Hawaii’s 2nd Congressional District since 2013; Siala-Mou Siliga, also known as Mighty Mo — a heavyweight boxer, kickboxer and mixed martial arts expert; and actor Al Harrington, best known for his role as Detective Ben Kokua on the original “Hawaii Five-O” on CBS.

Q: Do most American Samoans want to be U.S. citizens?

A: It depends on who you ask.

“American Samoans are not all of one mind on this,” said Alailima. “Some feel they have been given a special status by the United States. Some people feel that we’re special because we’re nationals, not knowing the history of why the U.S. made this distinction.”

American Samoa has never held a formal plebiscite on either citizenship or political status.

The American Samoan government opposed a lawsuit on citizenship that Weare filed in 2012, stating in court filings that a ruling in favor of citizenship could have “unintended and harmful effects” on American Samoans’ culture, which could be jeopardized if subjected to “heightened scrutiny” under the 14th Amendment.

For example, the American Samoan communal land tenure system prevents the transfer of ownership of land to people who are not of American Samoan heritage. Such rules could be viewed as discriminatory under U.S. law.

In 2016, the Supreme Court refused to review a U.S. appeals court ruling in that lawsuit that said it was up to Congress to change the legal status of American Samoans.

The office of American Samoa Gov. Lolo Matalasi Moliga did not respond to an emailed request for comment on the latest lawsuit and the government’s position on the citizenship issue.

Weare said he was optimistic that the Utah case would be successful.

Over the last two years he has heard from more than 700 American Samoans living throughout the 50 states and its territories who wanted to be recognized as citizens “without having to go through the hoops and barriers of the naturalization process,” he said.

And after the 2016 presidential election there was also a lot of interest among American Samoans living in the U.S. who were frustrated over being denied the vote, and “they wanted to do something about that,” Weare said.

The fact that American Samoans are not U.S. citizens, he said, is “something that I think most Americans are surprised to learn.”