Pago Pago, AMERICAN SAMOA — American Samoa Government and Congresswoman Uifa’atali Aumua Amata’s concerns over the impact and effect on the fa’a Samoa, or Samoan culture, with extending US citizenship to persons born in American Samoa was well accepted by the US Tenth Circuit Court of Appeals decision to reverse a lower court’s ruling in the Fitisemanu case.

“There is simply insufficient case law to conclude with certainty that citizenship will have no effect on the legal status of the fa’a Samoa,” said Senior Circuit Judge, Carlos F. Lucero, who wrote for the majority in the Tenth Circuit’s decision, in which Chief Circuit Judge Timothy M. Tymkovich, concurred.

 “The constitutional issues that would arise in the context of American Samoa’s unique culture and social structure would be unusual, if not entirely novel, and therefore unpredictable,” Lucero wrote.

The decision points out that citizenship status has often been an important factor in determining how the US Constitution applies to the unincorporated territories.

For example, the “most common interpretation of Reid,” the 1957 case that introduced the “impracticable and anomalous” standard, was that “citizenship [was] the fundamental variable” in determining the constitutional rights afforded to inhabitants of unincorporated territories, according to the majority ruling.

“Citizenship simply cannot be confidently declared irrelevant to how the Constitution will affect American Samoa,” the decision said. “And even if the contrary conclusion were tenable, it is not the role of this court to second-guess the political judgment of the American Samoan people.”

Lucero noted that the people of American Samoa have maintained a traditional and distinctive way of life: the fa’a Samoa. “It is this amalgam of customs and practices that Intervenors argue would be threatened if birthright citizenship were imposed,” he wrote.

For example, he explained that the social structure of American Samoa is organized around large, extended families called ‘aiga. These families are led by matai, holders of hereditary chieftain titles.

And the matai regulate the village life of their ‘aiga and are the only individuals permitted to serve in the upper house of the American Samoan legislature.

Another example, is that land ownership is predominantly communal, with more than 90% of American Samoan land belonging to the ‘aiga rather than to any one individual.

“There are also racial restrictions on land ownership requiring landowners to be at least 50% American Samoan,” Lucero points out. “Intervenors worry that these and other traditional elements of the American Samoan culture could run afoul of constitutional protections should the plaintiffs in this case prevail.”

Intervenors are the American Samoa Government and Congresswoman Uifa’atali Aumua Amata, while the main defendants are the US State Department and other department officials.

Plaintiffs are three individuals born in American Samoa and currently reside in Utah, where the federal court in Salt Lake City, ruled in December 2019 that persons born in American Samoa are US citizens by birth.

The ruling prompted the federal government and the Intervenors to appeal the lower court’s ruling, which was then overturned in a Tenth’s Circuit’s majority decision on Tuesday this week.

Circuit Judge Robert E. Bacharach, who wrote the sole-dissenting opinion, sided with the lower court’s decision. He also addressed the cultural issue and recalled that ASG had argued that U.S citizenship would be impractical because it would lead to recognition of other constitutional rights, like equal protection, that would threaten local cultural traditions.

“This worry lacks any legal foundation. Equal protection already applies to everyone within the United States’ territorial jurisdiction regardless of whether they are citizens,” Bacharach said, and cited previous federal courts decisions, including the Yick Wo v. Hopkins case — stating that Fourteenth Amendment’s equal protection clause applies universally to “all persons within the territorial jurisdiction” and “is not confined to the protection of citizens.”

“So courts have already applied the right to equal protection to American Samoans even while considering them non-citizens,” he said and cited the Craddick v. Territorial Registrar, 1980 Appellate Division case in American Samoa, stating that — “the constitutional guarantees of due process and equal protection are fundamental rights which do apply in the Territory of American Samoa.”

“And there’s no reason to think that citizenship would open the floodgates to other constitutional rights,” he said. “If another right is asserted, the court would need to separately decide the applicability of that right in American Samoa.”

He points out that citizenship “wouldn’t impair the individual plaintiffs’ ability to follow the cultural traditions of American Samoa, for these plaintiffs do not live on communal land or vote for members of the Fono.”

Bacharach also responded to ASG’s argument that birthright citizenship would upend political processes that ensure self-determination. He rejected this argument based on three reasons:

•         The Citizenship Clause applies by its own terms.

•         Judicial recognition of birthright citizenship respects American Samoa’s right to self-determination.

•         The practicality of applying a constitutional provision does not depend on elected legislators.

Another issue address by Bacharach are elected leaders involvement, saying in part that, the “practicality of applying a constitutional provision does not depend on elected legislators”.

“In my view, the Citizenship Clause currently applies by its own terms,” he said, and points out that the Citizenship Clause was meant to “put [the] question of citizenship . . . beyond the legislative power” for those to whom it applies. (He cited quotes in past cases.)

“As long as American Samoa remains a U.S. territory, citizenship is not for elected leaders to decide. That responsibility instead falls to the courts,” he said.

ASG and the Congresswoman have long-argued that the citizenship issue should be decided by the people in American Samoa not by a federal court thousands of miles away. This message was reiterated last month by Lt. Gov. Talauega Eleasalo Ale, when testifying virtual during a US House committee hearing on the  “Insular Cases Resolution”.

Talauega delivered a clear message from American Samoa and that is, any change to its political status and rights under federal territorial law, should be decided by local elected leaders, the territory’s people and the elected delegate to the US House — not by unelected federal judges. (See Samoa News edition May 13th for details.)