Pago Pago, AMERICAN SAMOA — The American Samoa Government and Congresswoman Uifa’atali Amata have argued that the citizenship issue pertaining to persons born in American Samoa, is “an exceptionally poor vehicle for reconsidering the Insular Cases”, and should wait for a case that actually requires revisiting Insular Cases, according filings with the U.S Supreme Court on Monday this week.

ASG and Uifa’atali are the Intervenors in the on-going litigation over a lawsuit filed by three American Samoans — led by plaintiff John Fitisemanu — currently residing in Utah. The defendants are the U.S State Department and other federal officials.

The Intervenors asked the Supreme Court to deny a petition filed in April this year by the plaintiffs — who are now petitioners — to review a decision by the majority of the U.S. Tenth Circuit of Appeals that citizenship birth on U.S. soil is not applicable to those born in American Samoa.

Through a Petition For Writ Of Certiorari, the petitioners asked the highest court in the nation to declare them U.S citizens and overturn the Insular Cases.

But the Intervenors filed a 44-page opposition response to deny the petition, arguing that the Tenth Circuit, “correctly held that the Citizenship Clause does not prohibit that longstanding and consistent historical practice — a holding that accords with every other court of appeals to consider the issue, and that this Court has repeatedly declined to review in other cases.” (See yesterday’s Samoa News online for details.)

The Intervenors in their response also addressed the Insular Cases, as raised by the petitioners, and others who filed briefings supporting the call for the Supreme Court to review the Insular Cases — which ASG and the Congresswoman have argued is a separate issue from the citizenship case.

The Insular Cases are a series of opinions by the U.S. Supreme Court issued in 1901, about the status of U.S. territories acquired in the Spanish-American War, and the periods shortly thereafter, in which the court ruled that full constitutional rights did not automatically extend to all areas under American control.

In their Supreme Court filings, the Intervenors contend that the question presented by this case — also referred to as the Fitisemanu case — is a straightforward question of the proper interpretation of the text of the Citizenship Clause. Namely, whether the phrase “in the United States” in the Citizenship Clause includes overseas territories like American Samoa.

“None of the Insular Cases squarely addresses that question. In fact, none of the Insular Cases arises under the Citizenship Clause at all,” the Intervenors argued. “Instead, those cases arise under other provisions of the Constitution, most of which do not define their own geographic scope and so provide no explicit textual basis for determining whether their protections apply overseas.”

Additionally, the Fitisemanu case therefore provides no basis for revisiting any of the Insular Cases. And contrary to what the petition suggests, the Insular Cases were not even central to the decision by the Tenth Circuit. 

The Intervenors acknowledged that majority panel of the Tenth Circuit did discuss those cases — referring to opinions in the Insular Cases — but its result did not depend on those cases.

According to the Intervenors, the outcome of the Tenth Circuit’s decision — based on Chief Judge Timothy M Tymkovich’s deciding vote — depended on the “traditional tools of constitutional interpretation: text, structure, and history,” and in particular on the more than a century of post-ratification historical practice rejecting petitioners’ view.

ASG and the Congresswoman noted that the petitioners themselves — in their request — contend that the Insular Cases are “irrelevant here,” as “[n]one involved the Citizenship Clause or defined ‘in the United States’ as it is used in the Fourteenth Amendment.”

“For precisely that reason, this case provides an exceptionally poor vehicle for reconsidering the Insular Cases,” the Intervenors said.  “This Court does not normally reach out to address issues that are not necessary to its decisions, and it certainly does not normally grant certiorari to decide a question that is not squarely presented.”

 Whatever interest there may be in revisiting the Insular Cases, the question of whether to overrule those decisions is “better resolved in other litigation” where it would actually be “dispositive of the case,” said the Intervenor quoting part of a ruling from a 1971 federal case.

According to the Intervenors, it bears noting that even if this Court were inclined to reconsider and overrule the Insular Cases, it would be remarkably ironic to take that step in a case where those decisions have been cited not to perpetuate racist or imperialist doctrines, but instead “to preserve the dignity and autonomy of the peoples of America’s overseas territories.”

The Insular Cases are often criticized for relying on “beliefs both odious and wrong” to deprive the inhabitants of overseas territories of their rights, including their basic right to self-determination, the Intervenors point out.

The Intervenors remind the Supreme Court that the decision by the Tenth Circuit: “respects the wishes of the American Samoan people, as expressed by the unanimous voice of their democratic government and elected representatives, by allowing the American Samoan people to decide for themselves (in consultation with Congress) whether and when to seek birthright citizenship.”

“It would be the height of irony to use the overruling of the Insular Cases to cut off that ongoing democratic dialogue, deprive the American Samoan people of their fundamental right to self-determination, and force them to accept birthright citizenship regardless of their wishes,” the Intervenors argued.

“The Tenth Circuit correctly determined that the Citizenship Clause does not require that result, and no further review is warranted,” they said.

Among the arguments provided in detail in the Intervenor’s opposition to the Supreme Court reviewing this case is that imposing Citizenship by birth on the American Samoan people “would threaten serious disruption to Fa’a Samoa” and “would disregard their basic right to self-determination.”

Furthermore, the Tenth Circuit decision, “accords with constitutional text, structure, history, and purpose” and also “accords with longstanding historical practice.”

Therefore, the Inventors argued, the Tenth Circuit’s decision does not warrant further review. “The decision is not only correct, but also presents no special circumstances that would warrant further review,” the Intervenors said and noted that petitions raising the same question have been regularly denied, including as recently as 2016 — referring to the identical Tuaua citizenship lawsuit case.

As the District of Columbia (D.C.) Circuit Court, correctly held in Tuaua, even if American Samoa were “in the United States” under the Citizenship Clause, the American Samoan people are not “subject to the jurisdiction” of the United States under the Citizenship Clause, and so the Clause does not extend them birthright citizenship.

(As previously reported in the past years by Samoa News, the ASG and the Congresswoman were Intervenors in the Tuaua case, in which the plaintiffs — led by local resident Leneuoti Fiafia Tuaua — petitioned the Supreme Court in 2016 to review the D.C Circuit decision rejecting their citizenship lawsuit. In the end the Supreme denied the petition in the Tuaua case to review the D.C Circuit Court’s decision.)

The Intervenors further argued that another factor weighing against granting further review now is the ongoing democratic dialogue on these issues, as American Samoans and their elected representatives have continued to work with Congress to determine the relationship that will best serve the American Samoan people and fa’a Samoa.

The Intervenors noted multiple bills have been introduced in Congress to further simplify the path to citizenship for American Samoans who choose to seek that status, including a pending bill introduced by Uifa’atali.

In addition, the American Samoan people are also in the midst of a constitutional convention, which will involve further debate over the relationship of the American Samoan people and their government with the United States, according to the Intervenors, and cited the Constitutional Review Committee — as of June 17, 2022 — report online.

“Given these pending potential changes in the legal background against which petitioners bring their challenge, there is good reason for this Court to decline review now and allow the democratic process to take its course before any further judicial consideration,” the Intervenors said.

Samoa News notes that the Constitutional Convention opened Monday this week at Gov. H. Rex Lee Auditorium and runs through this Friday.