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Citizenship Clause of 14th Amendmt at center of lawsuit

The lawsuit filed Tuesday at the federal court in Washington D.C. seeks a declaratory judgement that the Citizenship Clause of the Fourteenth Amendment to the U.S. Constitution applies throughout the United States, including American Samoa, according to the 27-page civil action suit, assigned to U.S. District Court Judge Richard J. Leon.

According to the suit, the Citizenship Clause provides: “All persons born… in the United States, and subject to the jurisdiction thereof, are citizens of the United States...”

The plaintiffs were born in American Samoa, “Therefore, they are U.S. citizens by virtue of the Citizenship Clause.”

Plaintiffs in this case are Leneuoti Tuaua, Fanuatanu Mamea, Emy Afalava, Va’aleama Fosi, Taffy-Lei Maene and the California based non profit group Samoan Federation of America, which does outreach work in the greater Los Angeles area and is headed by an American Samoan.

Tuaua, Mamea and Afalava currently reside in the territory, Fosi is a resident of Honolulu and Maene resides in Seattle.

Defendants in this case are the U.S. Government, the U.S. State Department, Secretary of State Hillary Clinton and State Department official Janice Jacobs.

According to the suit, plaintiffs were born in American Samoa and therefore, they are U.S. citizens by virtue of the Citizenship Clause. The defendants recognize that the Individual plaintiffs are Americans, but have denied that they are U.S. citizens.

Instead, the defendants classify the plaintiffs as so-called “non-citizen nationals” of the United States, as reflected in provision of the federal Immigration and Nationality Act of 1952 (INA) and the State Department’s Foreign Affairs Manual (FAM), the suit points out.

“The State Department has given effect to the ‘non-citizen national’ classification by imprinting a disclaimer of citizenship known as ‘Endorsement Code 09’ in the U.S. passports issued to persons born in American Samoa, including the plaintiffs,” the suit alleges.


The lawsuit further alleges that persons born in American Samoa  who are classified as “non-citizen nationals” of the United States do not have the same rights and privileges as do persons classified as “citizens” of the United States.

“Among other things, many federal, state, and municipal laws require that a person be a U.S. citizen in order to enjoy certain civil, political, and economic liberties, such as the right to vote, serve on a jury, bear arms, and hold certain forms of public sector employment,” it alleges.

According to the complaint, Tuaua was interested in pursuing a career in law enforcement in California, and he scored well on entrance examinations at the California Highway Patrol and the San Mateo County Sheriff’s Office.

However, only U.S. citizens and permanent resident aliens who have applied for citizenship are eligible to serve as peace officers in California, the suit stated and noted that Tuaua later moved back to the territory and pursued a law enforcement career, retiring in 2007 after 30 years of distinguished service, including many years of service as Marshal for the High Court of American Samoa.

During a news conference Tuesday afternoon, where local attorney Charles Alailima announced the suit filed at the federal court, Tuaua recalled this same information about applying for law enforcement in California but was not qualified due to the fact that he was not a U.S. citizen.

“Basically, I want to exercise my fundamental right as a resident of America Samoa. I feel that as long as the U.S. flag keeps on flying over this territory, we should be given the same privilege, same benefits just like any other U.S. citizen,” said Tuaua, who is the lead plaintiff in the suit.

“I feel that 112 years of sitting idly is long enough. We don’t want to wait for another 112 years,” he said referring to the 112 years since American Samoa became a U.S territory.

“I feel that it’s time for me to do something for my children and the future generations of ...American Samoa,” he said. “ I, along with the [other] plaintiffs don’t want another 112 years. If not us, who? If not now, when will they do it?”

According to the complaint, Mamea enlisted in the U.S. Army in 1964 while living in Hawai’i and in 1965 he applied to join the U.S. Special Forces, but, according to his supervisors, his application was denied because the United States did not recognize him as a citizen.

Mamea later served in Vietnam, where he sustained serious injuries during combat for which he was awarded two Purple Hearts. He was honorably discharged in 1984, the complaint says.

Mamea raised this same issue during Tuesday’s news conference saying that, “I was a soldier and they took me in as a soldier and I felt that I was entitled” to all privileges in the military.

He said he has three children who are U.S. citizens but has two other minor children who are U.S. nationals “and I want them to be U.S. citizens and I’m also looking at others who were born in American Samoa to be U.S. citizens.”

“We’re asking the court to look at us and make a judgement call and hope they rule in our favor,” he said.

(Samoa News will report on the problems encountered by the other plaintiffs in future editions).

Alailima said the issue to consider is that when the American flag was raised over American Samoa, there was a commitment in which “our ancestors ceded this land to America and became American soil.”

“The status of a person, based on where he was born and the citizenship of a person is born should be determined by the place he was born, and the flag under which he is born. The plaintiffs here should not have to ask to be United States citizens. They are United States citizens,” he said.

Also involved in this case is the Washington D.C. based group Constitutional Accountability (CAC), whose litigation and policy counsel Neil Weare (who was in the territory in March), participated in the news conference via telephone.

“This case is about the plaintiffs who were born in American Samoa and given unequal treatment that resulted in them being classified as ‘non-citizen nationals’ by the federal government and the CAC is proud to be involved in this and happy to help plaintiffs advance their case at federal court,” said Weare, who noted that it’s hard to put a timeline on the process involved in this case, which could take months to reach a conclusion.

Weare said the ruling the plaintiffs are looking for is the recognition that— because American Samoa is part of the United States— they are guaranteed the right to citizenship under the Citizenship Clause of the Constitution.

Asked if anything else needs to be done, such as legislation by Congress if the court rules in plaintiffs’ favor, Alailima said, “I think  there would probably be some necessary regulatory or even congressional action to try to implement [a ruling], by determining just who was born here and who was not born here.”

“So the plaintiffs, if the ruling is in their favor, just need to show proof of birth place,” he added.

According to the suit:

1.            Plaintiffs seek a declaratory judgment that persons born in American Samoa are citizens of the United States by virtue of the Citizenship Clause, saying that INA provision § 308(1) and the State Department’s policy and practice of imprinting Endorsement Code 09 in such persons’ passports is unconstitutional.

2.            Plaintiffs also seek an injunction restraining the State Department from imprinting Endorsement Code 09 in the passports of persons born in American Samoa and requiring that it issue new passports to the Individual Plaintiffs that do not otherwise disclaim that they are citizens of the United States, in order to ensure that their citizenship is acknowledged by those who look to the State Department’s issuance of a U.S. passport as conclusive proof of U.S. citizenship.

3.            The lawsuit is seeking costs and reasonable attorneys’ fees to which the plaintiffs might be entitled by law and such other relief as the court may deem just and appropriate.

In tomorrow’s edition, a look at the response by Alailima on political implications in this case.


An interesting side bar to the American Samoa citizenship lawsuit is an ongoing argument concerning the claim of Israel over the West Bank.

Printed in The Atlantic, an American magazine focusing on foreign affairs, politics, the economy and cultural trends, is an article by Jeff Goldberg entitled“Samoa, the West Bank of the South Pacific.”

The article is written in response to the Wall Street Journal's James Taranto taking issue with Goldberg’s "left-liberal” assertion that classifying the West Bank as part of Israel proper, rather than as occupied territory, would be a very bad thing for Israel's future as a Jewish-majority democracy.

The WSJ article says that Goldberg errs in assuming that an assertion of Israeli sovereignty over the disputed territories would necessarily be the equivalent of incorporating those territories into "Israel proper," and recommends looking at the American example to see why:

“The U.S. has several unincorporated territories--insular possessions over which America exercises sovereignty but which are not part of the U.S. They are, in declining order of population (and omitting unpopulated islands), Puerto Rico, Guam, the U.S. Virgin Islands, American Samoa and the Northern Mariana Islands.

“Residents of these territories do not have the right to vote in presidential elections. They have no representation in the Senate and only a nonvoting delegate or (in the case of Puerto Rico) resident commissioner in the House.

“Because these territories are not part of the U.S., their natives--unlike people born on the mainland or in Hawaii — are not entitled by the 14th Amendment to U.S. citizenship. Congress has enacted statutes granting birthright citizenship to natives of Puerto Rico, Guam, the U.S. Virgin Islands and the Northern Marianas — but not American Samoa.

“Natives of American Samoa whose parents are not U.S. citizens have the status of U.S. national. This gives them rights equivalent to those of a resident alien: They may freely travel, work and live in the U.S., and they may apply for citizenship--but until they become citizens, they are not entitled to vote in mainland elections.

“Goldberg and others who repeat this trope need to explain why Israel can't have unincorporated territories if the U.S. can.”

Goldberg responds:

“Well, okay, let me explain: I suppose that Israel could indeed have unincorporated territories, like the U.S. does, if the people who lived in the those unincorporated territories wanted to live as "resident aliens" of Israel. But they don't.This is one difference between the West Bank and [American] Samoa. The people of [American] Samoa seem content to be citizens of a territory of the United States. At the very least, they're not in perpetual revolt. If they werein perpetual revolt, or even sporadic revolt, does James Taranto really believe that the President, Congress and people of the United States would attempt to force [American] Samoa, through arms, to remain a territory of the U.S.? Or would we let the [American] Samoans have their independence, or whatever it is they said they wanted? I imagine the American people would choose the latter option.

“If the Palestinians of the West Bank choose, through a free and fair referendum, to become non-voting resident aliens of the State of Israel, well, who are we to tell them they're wrong? But so far there's no indication that Palestinians would freely choose such an arrangement.”

The full Atlantic article is linked here.