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U.S. opposes request to review 10th Circuit’s ruling in citizenship case

U.S. Supreme Court building
“United States,” as used in Citizenship Clause, doesn’t include Am Samoa

Pago Pago, AMERICAN SAMOA — The U.S Justice Department, representing the federal government, contends that the Petition for a Writ of Certiorari filed by three individuals born in American Samoa and residing in Utah, to review a U.S citizenship decision by a federal appeal’s court “should be denied” — arguing among other things that the term “the United States,” as used in the Citizenship Clause, does not include the territories, such as American Samoa.

The federal government — the Respondents in this suit — said the question presented in this case is: “Whether the Citizenship Clause of the Fourteenth Amendment confers United States citizenship on individuals born in American Samoa.”

The plaintiffs — now the Petitioners — led by John Fitisemanu — have requested the Supreme Court to review a decision by the majority of the U.S. Tenth Circuit Court of Appeals, which ruled that citizenship birth on U.S. soil is not applicable to those born in American Samoa.

And the petitioners asked the highest court in the nation to declare them U.S citizens — as they were born in the United States — and to overturn the Insular Cases.

The defendants in the ongoing litigation are the U.S State Department and other federal officials while the American Samoa Government and Congresswoman Aumua Amata, have already filed their joint briefing, as Intervenors opposing the petitioners’ request. (See Samoa News editions Aug. 30 and Aug. 31 for ASG and Uifa’atali’s response.)

In its 27-page response filed Monday with the Supreme Court, the Respondents argued that the Petitioners contend that the Citizenship Clause confers birthright citizenship on individuals born in American Samoa and that  violates the U.S Constitution.

However, the Tenth Circuit “correctly rejected that contention, and its decision does not conflict with any decision of this Court or of any other court of appeals,” the Respondents argued.

Additionally, the court of appeals’ interpretation of the Citizenship Clause is consistent with the Constitution’s test and with the long-established practice of the political Branches of the federal government.

“It is also consistent with the wishes of the Samoan people, who have made clear through their elected representatives that they do not favor birthright citizenship,” the Respondents point out.

And to the extent that Petitioners and other American Samoans who now reside in the U.S would prefer to become citizens, they can avail themselves of the favorable terms for naturalization Congress has provided.

Furthermore,  “this Court previously denied a petition for a writ of certiorari presenting the same question” in the Tuaua v. United States case in 2016, in which the Supreme Court rejected the Tuaua petition, according to the Respondents, who argued that the “same result is warranted here” in the Fitisemanu plaintiff case to deny the petition. 

The District of Columbia (D.C.) Circuit Court, held in the Tuaua case, that even if American Samoa were “in the United States” under the Citizenship Clause, the American Samoan people are not “subject to the jurisdiction” of the United States under the Citizenship Clause, and so the Clause does not extend them birthright citizenship.

The Respondents then offered lengthy arguments on its interpretation of the Citizenship Clause on their response to the Petitioner’s filing.  The Respondents also pointed out that the Citizenship Clause refers only to the “United States” and says nothing about territories or places — as opposed to persons — that are subject to the United States’ jurisdiction.

As the court of appeals explained, “practice between the Founding and the Fourteenth Amendment” was consistent with the understanding that citizenship in the territories “was not extended by operation of the Constitution,” because it was instead addressed by other instruments, such as specific provisions of treaties or statutes.

“And since the adoption of the Fourteenth Amendment, ‘every extension of citizenship to inhabitants of an overseas territory has come by an act of Congress’,” the Respondents point out.

The federal government also cited a concurring opinion by Chief Judge Timothy Michael Tymkovich of the Tenth Circuit that, “[t]he settled understanding and practice over the past century” is that Congress may determine the citizenship status of territorial inhabitants.

And the longstanding congressional practice confirms that the Citizenship Clause does not confer citizenship upon people born in territories such as American Samoa, the Respondents point out,

As this Court has explained, “long settled and established practice is a consideration of great weight” in the interpretation of the Constitution, according to the Respondents citing a quote from the 2022 federal case.

The Respondents also addressed the Insular Cases as argued by the Petitioners in their filing. Petitioners contend that the decision by the Tenth Circuit improperly applies the framework from the Insular Cases and that this case provides an appropriate vehicle for reexamining those decisions.

“That is incorrect,” declared the Respondents, who argued that the Supreme Court concluded that the Constitution applies “in full” in incorporated territories but “only in part” in unincorporated territories.

(Samoa News notes that American Samoa is an unincorporated and unorganized U.S territory.)

Specifically, the Court held that “guaranties of certain fundamental personal rights” apply in unincorporated territories, but it held that other constitutional guarantees do not apply in unincorporated territories, at least if “judicial enforcement of the provision[s] would be ‘impracticable and anomalous’,” the federal government argued.

According to the Respondents, the federal government’s defense relies on the text of the Citizenship Clause, which confers citizenship only on persons born in “the United States” a precedent that well predates the Insular Cases.

And the ordinary tools of constitutional interpretation — including text, context, historical practice, and precedent — establish that the term “the United States,” as used in that provision, does not include American Samoa.

“The multi-step framework from the Insular Cases is therefore beside the point. As a result, this case would be an unsuitable vehicle for reexamining those cases — cases which, petitioners emphasize, did not apply the Citizenship Clause,” the Respondents said.

Petitioners had argue that, “[b]ecause the court of appeals premised its holding on the Insular Cases, this case offers an appropriate vehicle for overruling those ill-founded decisions,” said the Respondents, who cited quotes from Petitioners filings

However, the Respondents point out that only one judge of the Tenth Circuit, Judge Carlos Lucero, relied on the Insular Cases’ distinction between fundamental and non-fundamental rights.

But Chief Judge Tymkovich, expressly declined to rely on the framework of the Insular Cases and instead rested his decision on historical practice, the Respondents point out.

The Respondents also argued that the views expressed by the American Samoan people provide a further reason to deny the petition for a writ of certiorari.  They pointed out that American Samoa’s elected government and congressional delegate have participated in this case to oppose the imposition of birthright citizenship on the American Samoan people.

Furthermore, the American Samoa Legislature unanimously passed a resolution that praised the court of appeals for “respecting the right of the American Samoan people to retain our current statutory birthright status as U.S. nationals” and expressed opposition to “efforts to impose U.S. citizenship on our people without our consent through judicial fiat.”

According to the Respondents: “Those views do not, of course, control the meaning of the Citizenship Clause, but they do counsel against reaching out to upset the longstanding and settled understanding that Congress may determine the citizenship status of persons born in the territories.”

For example — inhabitants of other territories, such as Puerto Rico, have obtained citizenship as a result of legislation, not as a result of judicial decisions.

“The same process remains available to the people of American Samoa,” the Respondents point out. “If the American Samoan people form a consensus in favor of birthright citizenship, the territory’s delegate to the U.S. House of Representatives could bring that issue to Congress’s attention, and Congress could change federal law at that time.”

And if this Court were to accept petitioners’ invitation to hold that the Citizenship Clause imposes U.S. citizenship on all persons born in American Samoa, “it would eliminate the opportunity for the American Samoan people to consider the issue democratically and to develop a consensus as to its proper resolution,” the Respondents said.

They also pointed out that federal law already allows American Samoans to naturalize as U.S. citizens after moving to any State, to the District of Columbia, or to any territory outside American Samoa.

All filings in this case are online at ( under John Fitisemanu v. United States.