Ads by Google Ads by Google

10th Circuit Court hears arguments in birthright citizenship appeal

Courtroom, 10th Circuit Court of Appeals in Denver, Colorado
Territories’ elected leaders oppose judicial extension, their attorney asserts

Pago Pago, AMERICAN SAMOA — The attorney for the American Samoa Government and Congresswoman Aumua Amata told a federal appeal’s court that the people of American Samoa want a voice in the decision-making when it comes to automatic US citizenship by birth instead of it being determined by a judicial decision.

Attorney Michael Williams of the Washington D.C.-based law firm of Kirkland & Ellis LLP represented ASG and the Congresswoman — the intervenors — during oral arguments yesterday morning before the US Tenth Circuit Court of Appeals based in Denver, Colorado. The the US citizenship case was appealed from the federal court in Salt Lake City, Utah — which ruled last December that “Persons born in American Samoa are citizens of the United States by virtue of the Citizenship Clause of the Fourteenth Amendment.”

Because of the COVID-19 pandemic, attorneys made oral arguments “remotely” via video conference using Zoom. Audio of the proceeding was also streamed online on the court’s YouTube channel, to which Samoa News and others.

The plaintiffs in this case are three American Samoans — John Fitisemanu, Pale Tuli and Rosavita Tuli — residing in Utah, while the defendants are the U.S. State Department, along with the Secretary of State and other senior officials.

The attorney representing the defendants — the appellant — was the first to make oral arguments, saying in part that in accordance with the constitutional text, the US Congress and the US Supreme Court have recognized for well over 100 years, it is for Congress to determine, whether and under what circumstances individuals born in American Samoa and other territories will become citizens.

Until the decision by the Salt Lake City federal court, “no court had ever held that the citizenship clause extends to the territories,” according to the attorney, who also fielded a number of questions from the bench.

For the ASG and the Congresswoman, Williams first pointed out to the judges that he represents the “democratically elected leaders of American Samoa. We oppose the judicial extension of citizenship to the people of American Samoa.”

Judge Carlos F. Lucero interjected telling Williams, “they have changed their mind? Correct? The [American] Samoans? At one point, they were aggressively arguing for citizenship. Correct?”

“That’s incorrect,” was Williams replied, adding that “what you have are snippets of a historical record — the report from 1930 when [US] Senator Bingham was speaking to chiefs on the beach.”

“And what happened in the past 60 years is more appropriate and more relevant for the court’s consideration. That 60-years ago the American Samoan people promulgated their constitution under the auspicious of the United States,” he explained. “And in that constitution, this was a literal constitutional moment, they included in that constitution specific protections for the Samoan way of life, fa’a Samoa.”

He argued that the American Samoan people didn’t “insist on citizenship” nor “greater recognition as part of the United States.”

“But what they bargained for with the United States and the US Congress then was for a system of democratically elected government. Since that time, the history of the relationship between the United States and American Samoa is one of great pride... increasing recognition of the self-determination rights of the American Samoan people,” he argued.

Lucero asked, “Are you saying to us — the Samoan populous has never sought US citizenship?” to which Williams responded, “It depends on how you define populous.”

Lucero said he is trying to “find out, historically, whether the [American] Samoan population, the majority thereof, has ever sought US citizenship?” - and this is the first question for Williams.

For the second question, Lucero said, “Are you saying  ‘we [American Samoans] want to throw the key away and forever, we do not want US citizenship?”

 And third question “Are you saying — we’d like to decide by a majority of votes whether we want to be US citizens?”

To the first questions, Williams’ response was “no”, arguing that “there’s no evidence in this record that a majority of people of American Samoa have ever stated that they want to be US citizens.”

Lucero pointed out, “that very important to me.”

As to the second question, the answer is also “no”, said Williams, adding that the “American Samoan people are not saying ‘throw away the key’. What they’re saying is, right now, there’s a structure in place, that happens to be the constructional structure, giving the American Samoan people a voice in what their choices will be, rather than waking up one morning and finding out their citizenship status has changed” by judicial decision.

Williams responded, “yes” to the third question, either by “majority vote or by consensus” of the American Samoan people, they would like to decide whether to be U.S. citizens or not.

“American Samoan people have not developed a consensus in favor of citizenship. This has been a great issue of fundamental importance.” Williams argued, noting that since 2012, when an identical citizenship lawsuit — Tuaua v. USA — was fieldws with federal court in Washington D.C., it has “been an issue at the forefront of American Samoans’ minds and their government — both the American Samoa Government, the governor and the Congresswoman from American Samoa.”

He also told the court that the Fono this year “issued a resolution saying that ‘we do not want the extension of birth-right citizenship.”

“Right now the American Samoan people have a decree of self-determination and they would like to decide what they want in a way that protects their culture,” Williams further argued.

“But at the same time, individuals from American Samoa not only have a path to citizenship but a glide path to citizenship and that’s due in part to Congresswoman Amata’s work, where they have an expedited path to citizenship if they choose to take it, once they reside in a state of the Union after leaving American Samoa,” he asserted.

Lucero asked, “so they have a path to citizenship if they leave Samoa?” and Williams reply, if “they become a resident of a state” of the US.

“I define that as leaving American Samoa. I don’t think court should impose citizenship on anyone. But I do want to be assured, that what’s you’re asserting, is that Samoans living in [American] Samoa, do not wish to be US citizens under some kind of constitutional argument,” Lucero told Williams.

“But rather [they] want to take on... some level of self-determination. And that essentially is a defensible position of the people of Samoa,” said Lucero,

Williams responded, “That’s not only a defensible position, but that’s why I’m here.” He went on to to say, “I represent the only democratically elected leaders of American Samoa, so there is a lawful fair way to have a voice. And I’m representing both people in Washington [D.C] and Pago Pago who have that voice.

“Other territories have made just these sorts of decisions,” he said and cited for example, the US territory of the Northern Mariana Islands, which wanted commonwealth status that includes citizenship negotiated with the United States.

He argued that the US Congress “has given greater respect to [American Samoan people’s] self-determination right.” However, he argued that the Salt Lake City federal court was not only a “step in the wrong direction but throwing those rights out the door.”

Samoa News will report in future editions, other questions by judges to Williams as well as arguments by the attorney representing the defendants. See in Saturday's edition, the official statement from attorneys representing the plaintiffs. Audio from the hearing is available at: