Supreme Court Advised to Avoid Territorial Citizenship Case

August 31, 2022 by Tom Ramstack
Supreme Court Advised to Avoid Territorial Citizenship Case
Elizabeth Prelogar, solicitor general of the United States.

WASHINGTON — The Biden administration on Monday told the U.S. Supreme Court to let Congress decide the citizenship of residents of U.S. territories rather than intervening with a court ruling.

The U.S. solicitor general informed the Supreme Court of the Biden administration’s advice in a legal brief.

The brief refers to the case of Fitisemanu v. U.S., which is pending before the court. It would decide the citizenship of residents of American Samoa and the other four U.S. territories.

The Supreme Court has touched on the issue in a series of previous rulings called the Insular Cases that date back a century. Their critics say racism and imperialism influenced the decisions that denied territorial residents U.S. citizenship as a birthright.


They can still get U.S. citizenship, but only by applying for it and meeting residency requirements.

The solicitor general’s brief said Fitisemanu v. U.S. is a poor example to resolve any unsettled issues.

The plaintiffs in the case are three Samoan natives now living in Utah. They claim a constitutional right to American citizenship.

The brief said that “the 14th Amendment’s citizenship clause … refers only to the ‘United States.’ It says nothing about territories or places … that are subject to the United States’ jurisdiction.”

The citizenship clause says that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” 

Solicitor General Elizabeth B. Prelogar wrote 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.”

In other words, it’s not an issue for the Supreme Court.

American Samoa is a group of islands about 2,500 miles south of Hawaii in the Pacific Ocean. It has a population of nearly 50,000. It became a U.S. territory in 1900.

American Samoa governs itself under a constitution adopted in 1967. Its unique characteristics show its people seek to preserve their traditional way of life, which includes communal property ownership.


Their constitution directs the American Samoan government to “protect persons of Samoan ancestry against alienation of their lands and the destruction of the Samoan way of life and language.”

Prelogar argues that the plaintiffs in Fitisemanu v. U.S. do not represent the interests of most Samoans.

The government of American Samoa and its non-voting delegate to Congress intervened in the lawsuit to join arguments against citizenship by birthright.

They said in a court filing that “[e]stablishing birthright citizenship by judicial fiat could have an unintended and potentially harmful impact upon American Samoa society.”

Their arguments are running up against recent court decisions that demonstrate different interpretations of constitutional rights to citizenship.

The U.S. District Court for the District of Utah ruled in 2019 that because American Samoa is “under the full sovereignty of the United States,” its residents are U.S. citizens. A divided U.S. Circuit Court of Appeals reversed the decision while calling the 14th Amendment’s citizenship clause “ambiguous.”

In its last term, when a different territorial rights question reached the Supreme Court, conservative justices — such as Neil M. Gorsuch — and liberals — such as Sonia Sotomayor — indicated they thought citizenship by birthright might be appropriate for the territories. The issue was whether residents of Puerto Rico were entitled to the Social Security Administration’s Supplemental Security Income benefits.

Gorsuch wrote that previous federal court rulings denying territorial residents U.S. citizenship often reflected a belief American Samoa, Puerto Rico and other territories were “inhabited by alien races.”

Gorsuch said the rulings contain “shameful” flaws and “deserve no place in our law.”

Sotomayor wrote, “In my view, there is no rational basis for Congress to treat needy citizens living anywhere in the United States so differently from others.”

The Supreme Court has not yet decided whether it will follow the solicitor general’s advice to avoid ruling in the Fitisemanu v. U.S. case.

In May, 12 civil rights groups led by the American Civil Liberties Union filed an amicus brief in the case urging the Supreme Court to grant birthright citizenship to territorial residents.


The ACLU said in a statement that the alternative was “an à la carte Constitution through which fundamental rights are afforded to some under U.S. jurisdiction but denied to others, and residents of the territories have borne the brunt of this inequity.”

Tom can be reached at [email protected] and @TomRamstack

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