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Abstract

For over a century, American Samoa has been an unincorporated territory of the United States. Due to its “unincorporated” status, its inhabitants lack U.S. constitutional citizenship under the Fourteenth Amendment. Congress has further failed to pass legislation granting statutory birthright citizenship to American Samoans, setting American Samoa apart as the only U.S. territory without birthright citizenship.

American Samoan representatives have fought to keep American Samoa from being further incorporated under the Federal Constitution. Despite American Samoa being the largest per capita contributor to the United States military, its people value their way of life, or fa’a Samoa, too much to jeopardize it by petitioning for further assimilation into the American way of life. American Samoan land is ninety percent communally owned. Only native-born American Samoans are allowed to serve in local political systems. American Samoans enforce a curfew and are deeply religious. Despite having a Bill of Rights that mirrors the Federal Constitution, American Samoan law does not allow for the vast array of individual rights that the United States guarantees.

It is for these reasons that American Samoa has respectfully asked Congress to table any legislation concerning American Samoan citizenship until the territory has decided for itself that further incorporation into the United States is best for its people. Congress has obliged since 1953. However, for some American activist groups, this unique trait of American Samoa is deeply unfair. These groups have brought multiple lawsuits in the past ten years pushing the Supreme Court to overturn a line of cases—the Insular Cases—that, in their view, are the only thing standing in the way of American Samoans having a constitutional right to citizenship under the Fourteenth Amendment’s Citizenship Clause.

Two cases in the past five years have been petitioned for certiorari, asking the Supreme Court to overturn the Insular Cases, which cabined constitutional incorporation for non-state territories. Their reasoning for wanting the Cases overturned is that they contain ethnocentric and otherwise racist language against the indigenous people of these extra-contiguous territories. The plaintiffs allege that the Cases either ought to be overturned due to their racism or that they do not apply to a citizenship issue, and, therefore, American Samoans must be birthright citizens.

The American Samoan government has intervened in these suits multiple times to defend the Insular Cases and fight for a right to self-determination. However, as a growing number of scholars back the opposing side, and as even Supreme Court Justices call for the end of the Insular Cases, courts have become hesitant in their deference to the Cases. In so doing, courts grow dangerously close to repeating the mistakes of the United States in its dealings with other sovereignties who did not want U.S. laws forced upon them, such as Native Americans.

This Comment seeks to show that the Insular Cases do not need to be invoked at all under a Citizenship Clause analysis because the text of the Clause defines its own scope, and American Samoa does not fall within it. This Comment supports this proposition by engaging in a textualist, originalist, and judicial pragmatist analysis of the Clause to show that the approach of the judge should not change the outcome. Because the Cases should not be invoked at all, if they were to be overturned, there would be no change to the status of American Samoans. Furthermore, this Comment analyzes the test set forth by the Insular Cases to show that, even if it is determined the Cases must be relied upon, the Cases do not include American Samoa in their scope. By doing so, this Comment seeks to set out a rational, fair interpretation of the applicable law without being blinded by the fog of politics that furthers the goals of those who seek to impose citizenship on people who do not want it.

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