Giovanni Cortez

Prof. David Plotke

May 16, 2016

Citizenship, Race, & Democracy in American Pol. Thought

Final

Of the five “unincorporated territories” acquired by the U.S. via treaty, war

victories or purchase, American Samoa remains the only place where U.S. citizenship is

not granted at birth. While citizenship laws certainly took time for the likes of Guam, the

U.S. Virgin Islands, the Northern Mariana Islands, and Puerto Rico, people are

automatically born as citizens. In the group of islands, only 2,500 miles southwest of the

state of Hawaii, Samoans must have a parent who was a citizen to secure those same

rights. As it stands, they must face an equivalent naturalization process that any non-

American does. 118 years after it’s acquisition and now noted for having the highest rate

of military enlistment in any place of the U.S., state or territory, it’s a necessary question

to ponder how this has happened why does it continue to be maintained. This paper sets

out to discuss American Samoa’s curious state of “citizenship”, political limbo, and the

ways in which some see non-citizenship status as perhaps the best option for a surviving

indigenous culture.

The history of how American Samoa obtained the ‘American’ in their

nomenclature is essential to both questions of citizenship and why Samoa is seen in the

way it is. A succession of civil wars preceded the United States’ involvement in the

islands. Rival Samoan factions fought the war between 1886 and 1894 over who would

be King of the South Pacific islands, Malietoa Laupepa or Mata’afa Iosefo. After sevral
German military interventions, the U.S. and UK’s involvement began what was known as

the Second Samoan Civil War, a conflict that reached a head after the three nations were

locked in dispute over who should have control over the Samoa Islands. After several

major battles and days of fighting, Samoan rebels were defeated and hostilities were

quickly ended after the partitioning of the island chain at the Tripartite Convention of

1899, signed on December 2, 1899. The western islands became known as German

Samoa. Though the United Kingdom vacated all claims to Samoa, they received a three-

part compensation: the termination of Germany’s rights to Tonga, all of the Solomon

Islands, and territory in West Africa. Finally, the eastern island-group (originally called

the Tutuila Islands, now officially Manu’a) became known as American Samoa as

territories of the United States. So the question remains after a full annexation, how could

the arrangement for the people of Samoa subjugated to the sovereignty of U.S., hence be

under the 14th Amendment, and not violate the Citizenship Clause? Some explanation can

be found in the shambled and high complex system of United States territories’ law.

Initially when U.S. completed the seizure of American Samoa, it was open ended

as to whether or not the territories had become part of the United States, especially

regarding citizenship. Only a year prior, the Spanish-American war was fought. The

victory of course famously yielded the U.S. several of Spain’s former colonies of Guam,

Puerto Rico, and the Philippines. The decision was to leave the question of citizenship

and deciding the constitutional relationships between the new territories and the rest of

the U.S. up to the Supreme Court. Enter the “Insular Cases”. Downes v. Bidwell

delineated the categories of the “incorporated territories”, meaning land that was destined

for statehood, and the “unincorporated territories,” everything else. An argument can be
made that “incorporated territories” has to do with land that is physically attached to

another continental state, though the series of decisions are certainly odd and somewhat

racist; Supreme Court justices made their concerns clear about the uncertainty they felt

granting citizenship to “uncivilized races.” Essentially, the “Insular Cases” distinguished

how new territories could belong to the U.S., while also not being a part of it, handing

imperialists an easy victory on the matter. American Samoa, as well as the others, could

be treated as colonies, with fewer constitutional constraints. To be “unincorporated” is to

be stuck in a constitution/citizenship-like limbo; to be considered part of the United

States for only certain purposes, not all. Whether people of “unincorporated territories”

were officially citizens was long unresolved at some point for every island. Now it is just

the people of American Samoa who are solely regulated to simply an overseas

possession, as well as possessing their own unique status: U.S. Nationals.

The Deeds of Cession officially transferred the sovereignty of Samoa over to the

U.S. in 1900 and again in 1904 signed by their leaders. What they believed they were

getting was ensured protection over their land and culture as well as recognition as U.S.

citizens in return. Without any case law to set the foundation for a matter of the sort, the

U.S. Navy and the State Department informally refused citizenship to American

Samoans. It was not until 1940 that Congress processed the official statute to deny their

citizenship. The courts decided though that while they couldn’t be apart of the U.S. in a

conventional way, they still weren’t exactly foreigners either. The State Department

labeled them “non-citizen national” or just “U.S. nationals”. This was and is an inferior

status to clearly delineate their lack of citizenship. Currently, the territory is allowed to
heavily govern itself, running its own customs and immigration system, though still their

unusual status as nationals creates difficulty engaging with their mother nation.

In one of the back pages of the American Somao’s official passport, it reads, “The

bearer of this passport is a United States national and not a United States citizens.” It’s

not hard to imagine what problems something like that may cause, but what exactly does

it mean to be a U.S. National and what is the difference between their designation and

regular citizenship? To start with what they are allowed, the people of Samoa are allowed

to serve in the military, though they are denied some military jobs, and work and live on

the mainland United States. The number of American Samoans living stateside is ever

increasing and they all are ineligible for many civil service and government jobs, federal

and state included, as well as run the risk of losing their currently employment were

employers to re-verify immigration status. They are also legally denied the right to serve

on juries, to vote in any election in any state, and to own concealed firearms. In order to

apply for US citizenship, they must undergo the same expensive and byzantine

naturalization process that those not born on U.S. soil must go through. The process is

months to years-long and in many cases it requires leaving their home community

behind, often uprooting the lives of their families, standing by for a decision. And as the

case is so frequently told, this process doesn’t always end in citizenship. The

conversation on American Samoa and immigration travel I believe deserves a paper all to

itself. Even when they do achieve citizenship, their legal status may still feel subordinate

to that of those automatically naturalized at birth and full citizenship. They face greater

difficulties when sponsoring national family members to immigrate to the continental

U.S., again something worth mentioning when it comes to a discussion on uprooting:

U.S. nationals and the effect on the home and the family. While these are only some of

the economic and legal harms of American Samoa’s unique U.S. national description,

there is also a level of social harm that implicates non-citizen nationals as inferior.

Naturally, a subordinate classification stigmatizes American Samoans as simply less than

other Americans who are clearly equal in times of war to serve in the military as depicted

in their high enlistment numbers. The notion of being lesser or inferior as a people came

up again in the most recent Appeals court filing of 2015 that again denied the territory

citizenship at birth.

To reiterate, an increasing number of American Samoans have been relocating to

the mainland United States for economic opportunity. This has correlated with the

intensifying effort and organization demanding birthright citizenship. If places

exceedingly further from stateside U.S. such as Northern Mariana Islands or Guam are

granted those rights, why can’t they be extended to American Samoans? This is the

question a group of American Samoans asked in lawsuit against the State Department and

the Obama administration. The plaintiffs included several army veterans and described

the discrimination they face as a people. The case, entitled Tuaua v. United States, begins

at pointing to the 14th Amendment meant to grant citizenship to every person born on

U.S. soil, whether state or not. The argument was that it was unconstitutional to deny

55,000 Americans citizenship. Citing the 14th Amendment, which reads in part, “All

persons born or naturalized in the United States, and subject to the jurisdiction thereof,

are citizens of the United States,” elicits the way, in which the amendment overturned

Dred Scott v. Sanford. It can be argued that the former overturned the latter to directly

answer questions on whether constitutional protections applied to territories of the U.S. as

well, though the Obama administration claimed otherwise in court. To back up their case,

they cited none other than the aforementioned “Insular Cases,” again relegating American

Samoa to lesser through the use of antiquated law.

It’s worth looking into the “Insular Cases” to pull up specific instances in which it

can’t be applied today, both as a bad law and as a racist one. After the U.S.’s continuous

expansion of the early twentieth century, political leaders faced the dilemma of wanting

to become an elite colonial power, while also not wanting to extend protections to foreign

(and overwhelming nonwhite) peoples and the territories they inhabit. The solution was

of course the two distinguished “incorporated territories” and “unincorporated

territories”, but what’s not discussed is how America decided which lands were

considered candidates for statehood. The answer is based largely on racial and ethnic

makeup. In the “Insular Cases”, the Court Justice, infamous as the author of Plessy v.

Ferguson that approved segregation, Henry Brown speaks on the people of the newly

acquired islands as “alien races” and “savage”. He stated that Congress would ultimately

treat the territories well, as they needed, because it was a led by “certain principles of

natural justice inherent in the Anglo-Saxon character.” Another Justice in the “Insular

Cases”, Edward White, argued that granting citizenship to the “uncivilized races” would

“inflict grave detriment on the United States” and refused to offer “bestowal of

citizenship on those absolutely unfit to receive it.” In 2015, to cite these outdated cases

saturated in white supremacy and toxic imperialism is merely insulting and detrimental to

how Americans are then to see American Samoans. Another piece that is interesting

about the Obama administration citing the “Insular Cases” is that while they mention

citizenship countless time, they don’t directly address the issue. The cases are more
concerned with whether or not certain economic aspects of the Constitution (taxation and

tariffs) apply to new territories. When read, the only argument that the Insular Cases

make against citizenship for new territories is simply that it isn’t possible to imagine

these people being welcomed into American society because of their differences, and

moves on. The American Samoan plaintiffs in Tuaua v. United States argued for this

reason that there is no relevancy between them and hence not actually at issue in neither

case. The DC circuit responded by citing an expansive view of the Insular Cases in the

1901 Downes v. Bidwell where the court found that a tax provision did not apply to

Puerto Rico because Puerto Rico is not a part of the United States and in that line of

thinking, nor is American Samoa. Obama’s administration again heavily quoted Henry

Brown who stated on citizenship in a case not about citizenship, “the Constitution should

not be read to automatically confer citizenship on inhabitants of U.S. territories”. Still, we

should question why any comment on the fates of minority people should lie on the

words of the man who was responsible for segregation. As already stated, the U.S. Court

of Appeals ultimately ruled against the plaintiffs, not only leaving a vestige of American

colonialism in place, but also airs the question, just what rights do territorial citizens

have? A conversation on birthright citizenship is one thing, but perhaps what needs to be

addressed first is that perpetual prevalence of the Insular Cases.

While there seems to be a clear understanding of how American Samoans are

relegated to second-class treatment, some members of the population refuse to endorse

birthright citizenship, something that has been heavily contested far before Tuaua v.

United States. Government officials in particular think that citizenship equates to the

dilution of fa’asamoa, or the Samoan way. They believe that territory status in fact
accommodates their cultural distinctiveness and system based on an extended familial

system and communally held land. The local land ownership is essential to fa’asamoa.

More than 90% of land on the islands is communally owned while most of the rest is

owned by ethnic Samoans under laws that limit most property ownership to people with

“native blood.” The communal land system can be seen as what makes up the cultural

system of the American Samoans and they see change in politics and status are a risk to

their durability as a people as laid out by Sean Morrison, former president of the

American Samao Bar Association, in a paper for the Hastings Constitutional Law review.

If land laws were to be put in jeopardy, the social fabric of the people would unravel.

That is the point that the American Samoan government made when it took the side of the

Obama administration: if a lawsuit grants a change to the status of American Samoa then

other their own laws inversely could also be challenged in court. Local officials prefer

and maintain that Samoans can only battle citizenship at local elections in the ballot box

then proceed to petition as the only legal way to acquire birthright citizenship.

I want to conclude this paper by stating that while the questions raised in Tuaua

are intricately tied to the legacy of the Samoa islands and hence far from reaching a

conclusion, it is something that must reach a consensus of one form or another. The

severe harm that comes from the uncertainty of citizenship is two fold: one, as the simple

insult of what it means to be considered of second-class status and two, the long term

effects of that uncertainty, still easily discernable even in the territories that have now

been granted birthright citizenship. It will forever be a part of the legacy of American

expansionism and will continue to subsist until the scope of the Citizenship Clause can be

clarified for the American Samoa people.