Pago Pago, AMERICAN SAMOA — A Dec. 27th order released by the Clerk of the U.S Tenth Circuit Court of Appeals denied the petition by plaintiffs who are three American Samoans that requested a “rehearing en banc” or the full-panel of the U.S. Tenth Circuit Court of Appeals to review the decision made in June of this year by the three-judge panel of the same appeals court, where the majority ruled that citizenship birth on U.S. soil is not applicable to those born in American Samoa.

The trio resides in Utah and defendants include the U.S State Department and its officials. Intervenors in the case were the American Samoa Government and Congresswoman Uifa’atali Amata.

According to the order, the Petition and responses were transmitted to all non-recused judges of the court who are in regular active service. Additionally, a poll was called and did not carry.

In accordance with federal appellate court rules, the order said that en banc consideration requires the approval of a majority of the circuit judges who are in regular active service and who are not disqualified.

“Accordingly, the petition is denied,” the order said, and noted that Circuit Judge Robert E. Bacharach, and Circuit Court Judge Nancy L. Moritz “would grant rehearing en banc.”

The court decision also includes a written dissent from Judge Bacharach from the denial of rehearing en banc, which was joined by Judge Moritz.

Judge Backarach — who also wrote the dissent opinion from the majority of judges who had agreed with the defendants and the intervenors and issued a decision in the summer — provided extensive arguments in the written dissent.

“In my view, the issue of citizenship for individuals born in American Samoa is exceptionally important,” the written dissent said.  “The right of citizenship is precious to every U.S. citizen, something that the Fourteenth Amendment has removed from Congress’s control.”

Although American Samoa ceded itself to the United States over a century ago, individuals born there have never obtained recognition as U.S. citizens, the dissent said.

“So if American Samoans are not naturalized, they cannot enjoy any of the plethora of rights that we enjoy as citizens. For over 120 years, we’ve denied these rights to American Samoans,” it says and points out that this issue also affects individuals born in other U.S. territories — including natives of Puerto Rico born in the last 120+ years, natives of Guam born in the last 70+ years, natives of the Northern Mariana Islands born in the last 40+ years, and natives of the Virgin Islands born in the last 100+ years.

Responding to Samoa News request for comments and reaction to the case, attorneys for the plaintiffs said, in a brief statement from local attorney Charles Alailima — one of the lawyers for the plaintiffs.  “We are reviewing these developments with our clients and will have more to announce in the coming days,” he told Samoa News.

The attorneys also points out that extensive written dissents to the denial of en banc petitions are rare and “here we have two appeal judges explaining in great detail why they believed the original decision by the Utah Federal District Court judge was correct.”

“They included the significant historical evidence that when the Fourteenth Amendment was ratified it was understood to guarantee citizenship to people born in U.S. territories like American Samoa,” the statement said. “They gave a detailed legislative and court legal history of why the Fourteenth amendment citizenship by birth clause was created to ensure equality for all who were born on U.S. soil.”

“American Samoa's traditional leaders who signed the Deeds of Cession had very good reason to believe that after the transfer of sovereignty to the United States anyone born on Tutuila and Manu’a were citizens of the United States,” the attorneys pointed out.

“As noted by these two federal judges the constitutional issues being presented here are of great significance not just to American Samoans but to all the States and Territories because the questions of whether current U.S. territories are “in the United States” and whether Congress can deny citizenship to people born in these areas despite their birth on sovereign U.S. soil has never been directly answered by the Supreme Court,” the attorneys added.

The plaintiffs are represented by Neil Weare, president of the US based group, Equally American and local attorney Charles Alailima — who provided Samoa News with the statement copied to Weare.

The lead attorney representing the intervenors didn’t immediately respond to the Samoa News request for a comment and reaction.