Am. Samoa Citizenship Plaintiffs Cite 14th Amendment

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U.S. Constitution requires equal rights, brief asserts

By Fili Sagapolutele

PAGO PAGO, American Samoa (The Samoa News, April 30, 2014) – The American Samoan plaintiffs in the citizenship lawsuit have filed their merit brief with the federal appeals’ court in Washington D.C. and their main argument is that the Fourteenth Amendment of the U.S. Constitution guarantees them citizenship by birth on U.S. soil, according to their attorneys.

"Because we are born on U.S. soil, my family should have the same right as other Americans and be recognized as [U.S.] citizens," lead plaintiff Leneuoti Tuaua said in a news release upon filing the merit brief.

"How can we be Americans, but not citizens? That simply doesn’t make any sense," said Tuaua, a retired marshal of the High Court of American Samoa.

The plaintiff's appeal is the result of a June 2013 decision by U.S. District Court Judge Richard J. Leon who says that the plaintiffs have failed to state a claim upon which relief can be granted.

According to the judge, plaintiffs’ claims all hinge upon one legal assertion, which is that the Citizenship Clause guarantees the citizenship of people born in American Samoa.

In a statement after the merit brief was filed, the plaintiffs said the federal government (the defendants) had relied on a series of controversial decisions known as the ‘Insular Cases’, which First Judge Juan Torruella (a judge on the United States Court of Appeals for the First Circuit) has criticized as establishing a "doctrine of separate and unequal" status in U.S. territories.

Speaking at Harvard Law School’s "Revisiting the Insular Cases" conference in February, Judge Torruella argued that "[t]he Insular Cases represent classic Plessy v. Ferguson legal doctrine … that should be totally eradicated from present day constitutional reasoning," the plaintiffs point out.

(Plessy v. Ferguson [1896] is a landmark United States Supreme Court decision upholding the constitutionality of state laws requiring racial segregation in public facilities under the doctrine of "separate but equal". "Separate but equal" remained standard doctrine in U.S. law until its repudiation in the 1954 Supreme Court decision Brown v. Board of Education. [Wikipedia])

Locally based attorney, Charles Alailima said American Samoa has been under U.S. sovereignty for almost half of the existence of the United States. "Our Samoan forefathers of Tutuila and Manu’a voluntarily surrendered their sovereignty and the United States voluntarily accepted," he said. "Our ancestors did so with the expectation of full participation in the American experience for themselves and their descendants."

"Instead the second-class status has been imposed on them for over a century. This second class status is not just a legal wrong under the United States Constitution, It is a moral wrong," said Alailima, who is providing legal representation pro bono.

Murad Hussain, who is part of a team of attorneys at the law firm of Arnold & Porter, also providing pro bono aid to the plaintiffs, pointed out that the Citizenship Clause was written to strip the government of the power to say that people born on U.S. soil aren’t citizens.

"It defies the Framers’ intent for politicians to try restricting where the Citizenship Clause applies and who it applies to," Hussain said.

Plaintiffs said that until Leon’s decision, no court had ever held that people born in a current Territory are not born "in the United States" within the meaning of the Citizenship Clause.

Therefore they argued that the appeal’s court should reject defendants’ efforts to rewrite the scope of constitutional birthright citizenship. "Instead, fidelity to the Citizenship Clause’s text, history, and authoritative interpretations by the Supreme Court in the years following its ratification, confirm its application in the Territories," they said.

In the alternative, this Court should follow the framework it previously set in a 1975 federal case— King v. Morton—for determining whether a particular constitutional right applies in American Samoa today, they said.

(In this case the late Jake King sued the Dept. of Interior for the right to a jury trial and was successful and thus it was determined that the right to a jury grail applied in American Samoa.)

According to the briefing, plaintiffs already owe permanent allegiance to the U.S. because of their birth on U.S. soil, adding that the Constitution requires that they also be recognized as citizens.

Plaintiffs disagreed on several issues raised by the district court; for example, they say the district court erred in rejecting the argument that the Fourteenth Amendment’s guarantee of citizenship is a "fundamental" right in American Samoa.

"Citizenship by birth within the sovereign’s dominion is a cornerstone of our common law tradition that predates the United States itself," plaintiffs contend.

Additionally, the district court’s rejection of the claim that constitutional birthright citizenship is a fundamental protection for persons born in the Territories cannot be squared with the Supreme Court’s emphatic statements, over nearly 150 years since the Fourteenth Amendment’s ratification, about the importance of the citizenship right.

"Birthright citizenship has already been recognized by statute, without incident, in the Territories of Puerto Rico, Guam, the U.S. Virgin Islands, and the Northern Mariana Islands," plaintiffs say.

"Moreover, citizenship has not undercut the Northern Mariana Islands’ land preservation laws, which are similar to those in American Samoa."

The American Samoa Government and Congressman Faleomavaega Eni, filed a Motion to Intervene or, in the Alternative, for Leave to Participate as ‘amicus curiae (friends of the court) in this appeal.

In February this year, the appeal’s court referred the matter for consideration to a merits panel. Plaintiffs said they do not oppose petitioners participation as amici curiae, but Movants (persons who apply to or petition a court or judge for a ruling in his or her favor) have no valid basis to intervene directly on appeal.

They argued that the appeal’s court allows intervention on appeal "where none was sought in the district court only in an exceptional case for imperative reasons."

Further, Faleomavaega never sought to intervene in the district court, despite participating in the proceedings below as amicus curiae. ASG only moved to intervene in the district court six months after briefing was completed on Defendants’ motion to dismiss.

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