Pago Pago, AMERICAN SAMOA — The “Insular Cases were correctly decided”, and “there is no reason to question their soundness”, according to two organizations in the Commonwealth of the Northern Mariana Islands (CNMI) that filed a joint amicus brief  — or “friends of the court” brief — in the U.S. Supreme Court, which is being asked not to overturn the Insular Cases.

The amicus brief by Northern Marianas Descent Corporation and the United Carolinian Association, opposes the Petition For Writ Of Certiorari filed with the Supreme Court in April this year by three American Samoans who reside in Utah, which asks the highest court in the nation to declare them U.S citizen and overturn the Insular Cases.

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.

Local attorney Charles Alailima, who is one of the attorneys for the three American Samoans, told a U.S House Committee hearing last year that the “Insular Cases have served to delay or deny the right of self-determination in U.S. territories by entrenching undemocratic rule over the territories. Simply put, the Insular Cases are no friend to the people of American Samoa or any U.S. territory.”

As previously reported by Samoa News: In a majority ruling in June of last year, the U.S Tenth Circuit Court of Appeals reversed a lower court’s decision, that “Persons born in American Samoa are citizens of the United States by virtue of the Citizenship Clause of the Fourteenth Amendment.”

While the majority ruled that citizenship birth on U.S. soil is not applicable to those born in American Samoa, a dissenting judge — one of the three-judge panel who heard the case — agrees with the lower court, saying that the plaintiffs, are US citizens because they were born in American Samoa.

John Fitisemanu is the lead plaintiff in the case filed more than two years ago at the federal court in Salt Lake City, Utah, against the U.S government which was joined by the American Samoa Government and Congresswoman Uifa’atali Amata — as Intervenors — in opposing the lawsuit

The defendants along with the Intervenors appealed the lower court’s decision to the Tenth Circuit, which also denied plaintiffs petition for a “rehearing en banc” — or the full-panel of the U.S. Tenth Circuit.

Then in April this year, plaintiffs — through their legal team — filed a Writ Of Certiorari petition with the Supreme Court and several amicus briefs supported the plaintiffs — who are the now the petitioners.

As of last week, the only opposition filed against the petitioners calling on the court not to overturn the Insular Cases was the joint amicus brief filed by the two CNMI-based groups, which are non- governmental organizations dedicated to the protection and advancement of the interests of the indigenous peoples of the Northern Mariana Islands, with a particular focus, on advancing the economic, educational, cultural and overall well-being of the Carolinian people.

According to the amicus brief, both organizations are dedicated to protecting the existing restriction that acquisition of land in the Northern Mariana Islands is reserved for persons of Northern Marianas descent, a restriction that has been upheld on the authority of the Insular Cases.

SUMMARY ARGUMENTS

The two organizations argued that the petitioners seek to overturn the Insular Cases – a series of decisions by this Court holding that the United States, when acting outside its incorporated territory, holds all the powers belonging to a nation under international law, subject only to express  constitutional prohibitions, and to such inherent constitutional limitations as are essential to all free government.

“Because of the reliance placed on them, especially in the Northern Mariana Islands, and because they were correctly decided, the Insular Cases should not be disturbed, and the writ of certiorari should be denied,” they further argued.

The amicus brief also argued that the flexibility in the Insular Cases ruling “was needed when the CNMI was created” - through the Covenant mutual agreement with the United States - “and it was needed in this case in American Samoa.”

“When it is needed, the Insular Cases are there to provide it. But the flexibility that they provide is now appropriately exercised in support of the islanders’ own autonomy, as the Tenth Circuit Court recognized in this case,” the amicus brief argued and cited part of the Circuit majority decision in the Fitisemanu case.

Specific quotes from the Tenth Circuit decision cited by the amicus brief on the Insular Cases:

• “This same flexibility permits courts to defer to the preferences of indigenous peoples, so that they may chart their own course.”

• “[T]he Insular Cases permit this court to respect the wishes of the American Samoan people.”

• “The Insular framework better upholds the goals of cultural autonomy and self-direction.”

CONCLUSION

“Because of the reliance that has been placed on their validity by the people of the Northern Marianas, and because they were correctly decided in the first instance, the Insular Cases should not be revisited or overruled, and the petition for writ of certiorari, which seeks to overturn them, should be denied,” the amicus brief said.

“Alternatively, if the petition is granted, the writ should be limited to any asserted grounds for citizenship which do not implicate the Insular Cases,” the amicus brief said.

The two CNMI organizations are represented by Joseph E. Horey in Saipan.

FEDERAL GOVERNMENT RESPONSE

U.S Solicitor General, Elizabeth B. Prelogar, in a July 22 letter to the Clerk of the Supreme Court noted that responses to the petition for a writ of certiorari now due, after two extensions, on July 29.

Under court rules, Prelogar requested a further extension of time to and including August 29, within which all respondents may file their responses.

“This extension is necessary because the attorneys with principal responsibility for preparation of the government’s response have been heavily engaged with the press of previously assigned matters with proximate due dates,” Prelogar wrote, noting that counsel for petitioners consents to this further extension.

No information was available on public records, as to whether Prelogar’s request has been granted.

Samoa News notes that the federal government’s request for extension of time to respond also covers ASG and Congresswoman Uifa’atali  — both have long ago argued that people of American Samoa should determine their own status but not by a federal court.

All filings in this case  under “John Fitisemanu, et al., Petitioners v. United States, et al” - are available on the Supreme Court website (www.supremecourt.gov).