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ASG and Faleomavaega work together to oppose citizenship lawsuit

The American Samoa Government and Congressman Faleomavaega Eni are seeking to intervene, or in the alternative, participate as amici curiae — ‘friends of the court’ — in the citizenship lawsuit appeal now before the District of Columbia Court of Appeals.


The lower court in D.C ruled in June saying in part that citizenship is "not a fundamental right" in unincorporated territories such as American Samoa. “To date, Congress has not seen fit to bestow birthright citizenship upon American Samoa, and in accordance with the law, this Court must and will respect that choice,” said U.S. District Court Judge Richard J. Leon in dismissing the suit.


In August, the American Samoan plaintiffs in the citizenship lawsuit, which was filed against the U.S. State Department and two federal officials, filed a notice of appeal with the federal appellate court. (The new U.S. Secretary of State is now a defendant in this case, replacing former secretary Hillary Rodham Clinton)


Through the Washington D.C. based law firm of Kirkland & Ellis LLP, ASG and Faleomavaega asked the appeals court to grant them leave to intervene or, in the alternative, to participate as amici curiae in this appeal, “which poses a question of exceptional importance to the people of American Samoa.”


ASG and Faleomavaega argued they have “distinct and exceptionally important interests at stake in this appeal, which seeks to disrupt settled principles of constitutional interpretation and, if successful, would have a significant impact on the entire people of American Samoa,” the motion states.


They contend their interest will not be adequately represented by the parties to this appeal.




Although the federal appellate court rules do not explicitly provide for intervention on appeal, the U.S. Supreme Court has counseled that “the policies underlying intervention [outlined in the Federal Rules of Civil Procedure] may be applicable in appellate courts,” the motion states.


Under provisions of federal civil procedure rule, a court must grant a timely motion to intervene when the movant “claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.”


According to the motion ASG and Faleomavaega satisfy each of these requirements.


The motion further argues a decision from the appeals court that the Citizenship Clause of the Fourteenth Amendment applies to persons in American Samoa “would impede the historical ability” of ASG “to negotiate with the federal government about the naturalization status of American Samoans and the ability of Faleomavaega to represent the Samoan people on this important issue before Congress.”


(The lower court has also ruled that only Congress has the authority to grant citizenship to American Samoans.)


The motion recalled that Faleomavaega had explained to the lower court in his amicus brief that a ruling wherein the Citizenship Clause encompassed the people of American Samoa could have unintended and harmful effects on the culture of America Samoa.


“The American Samoa Government shares this view. The position of the plaintiffs... is directly opposed to this position,” the motion states.


It also says the plaintiffs assert individual harm based on their status as U.S. nationals, “but they do not consider the potential societal harms that their proposed remedy could cause.”


And although the defendants have taken the legal position that both ASG and  Faleomavaega advocate, the defendants “have no particular interest in protecting the traditional way of life in American Samoa,” it says.


Additionally, ASG and Faleomavaega “are best situated to represent the concerns of the people of American Samoa on this matter of exceptional importance.”


The motion also says that the plaintiffs, through the lawsuit, “seek to circumvent the historical role of the American Samoa Government in negotiating with the United States about the rights of the American Samoan people, and this [appeal] could should not exclude the America Samoa Government from the litigation, particularly because the interests advanced by the plaintiffs are adverse to those advanced” ASG.


According to the motion, Faleomavaega also has personal interests at stake in the action, adding that if the plaintiffs succeed in this suit, the Congressman “will suffer several harms: inter alia, it will undermine his role as advisor to Congress on the question of Samoan citizenship; it will nullify his ability to guide legislation through the [U.S.] House on the subject of Samoan citizenship; it will preclude him from choosing U.S. national status in the future; and it can jeopardize his matai standing as Faleomavaega.”


The motion said both ASG and Faleomavaega have standing to intervene in this case.


After the motion was filed, Faleomavaega announced the action taken by himself and ASG and the pair are being represented pro bono by the Kirkland & Ellis law firm.


“I am hopeful that the court will accept our motion to intervene and ensure that the interests of the American Samoa people are represented,” he said and thanked Gov. Lolo Matalasi Moliga and Attorney General Afoa L.S. Lutu for their support in the matter.


He also thanked Kirkland & Ellis “for their kind assistance and service on behalf of our people.”