Claiming they have been relegated to second-class status, some American Samoans are asking the Supreme Court to correct a historic wrong and overturn a century-old law that denies them the right to be U.S. citizens at birth.
Unlike children born in all the states and the other U.S. territories such as Puerto Rico, U.S. Virgin Islands, Guam and the Northern Mariana Islands, the newborns of American Samoans do not become automatic U.S. citizens.
They are instead deemed as “nationals” who owe their allegiance to the United States, but lack the rights as citizens to vote, to serve as officers in the military or hold top government posts.
The Carson-based Samoan Federation of America is asking the justices to take up its claim that the Constitution’s 14th Amendment promises citizenship to all persons born on U.S. soil.
“We’re proud of the United States, and we want to be recognized as part of it,” said federation President Loa Pele Faletogo, 71, a military veteran living in Carson. “I see young men and women who go to war to fight for the United States. They are willing to die for a country that is not fully theirs and for a nation that doesn’t fully accept them as citizens.”
California is home to about 61,000 American Samoans, according to the 2010 census. That’s more than the 55,000 who live on the South Pacific islands.
But both the U.S. and American Samoan governments are urging the high court to reject the appeal. The U.S. solicitor general says the matter should be left to Congress.
The American Samoan government has historically opposed birthright citizenship, fearing it might adversely affect its national culture.
The justices considered the appeal Thursday during their private conference and could act as soon as Monday.
Former U.S. Solicitor Gen. Ted Olson filed the appeal on behalf of the five Samoan plaintiffs and the Samoan Federation, asking the justices to revisit the so-called insular cases of the early 1900s. Those controversial decisions said the people of the newly acquired American territories are entitled to only some of the constitutional rights of Americans.
Justice Henry Billings Brown, the author of the 1896 Plessy vs. Ferguson decision that upheld racial segregation, wrote in 1901 that extending full rights to the people in lands “inhabited by alien races” might threaten the “development of the American empire.”
Last year, Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit acknowledged the 1901 opinion and others like it may be “politically incorrect” and reflect outdated “views of race and imperialism.” Nonetheless, she spoke for the three-judge panel that rejected the Samoans’ suit and said it was up to Congress, not the courts, to change their status.
Olson’s appeal points to the 14th Amendment, adopted after the Civil War. Its opening clause says: “All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States.”
The amendment was intended to overturn the Supreme Court’s Dred Scott decision, which denied rights and citizenship for African Americans. Sen. Lyman Trumbull of Illinois, a sponsor of the amendment, said its promise of citizenship at birth extended “to persons everywhere, whether in the states, or in the Territories, or in the District of Columbia.”
Olson cites this history to argue the Constitution includes an “unequivocal promise of birthright citizenship,” yet Congress has “singled out persons born in American Samoa” and “branded them with an inferior, subordinate status that deprives them of the full rights many of them have fought to defend.”
In 1900, after the its victory over Spain in the Spanish-American War and its seizure of the Philippines, the United States also took possession of part of the Samoa islands, which became American Samoa.
Congress decided its people “shall be nationals, but not citizens, of the United States at birth.” Today Samoans who move to the mainland can become citizens, but only by going through the lengthy naturalization process.
The appeal in Tuana vs. United States is backed by several groups of legal scholars who say the court should use the case to clarify the constitutional standards for citizenship.
FOR THE RECORD
7:43 a.m., June 15: This article misspelled a name in a case citation. It is Tuaua vs. United States, not Tuana vs. United States.
Lingering confusion over the subject arose during the Republican primaries this year, when Donald Trump questioned whether Sen. Ted Cruz of Texas was eligible to run for president as a “natural-born citizen” because he was born in Canada. Most legal scholars sided with Cruz because Congress had extended citizenship at birth to children who were born abroad to American parents.
On Twitter: DavidGSavage
2:20 p.m.: This article has been updated with additional background.
It was first published at 9:01 a.m.