Insular Cases Cited In Am. Samoa Citizenship Case ‘Infused With Racial Bias’

Lawyer for plaintiffs seeking automatic U.S. citizenship submits briefs to Supreme Court

By Fili Sagapolutele

PAGO PAGO, American Samoa (The Samoa News, May 25, 2016) – Lead attorney for the five American Samoans and a Samoan organization in California in the US citizenship lawsuit case have urged the Supreme Court of the United States to grant its petition for ‘writ of certiorari’ because the case “undisputedly presents a constitutional question of tremendous importance,” according to the plaintiffs’ brief filed on Monday.
The plaintiffs contend that the American Samoa government’s opposition to the Supreme Court hearing this case is based on the mistaken belief that recognition of citizenship would threaten cultural preservation laws.
Supreme Court attorney Theodore B. Olson, representing plaintiffs — led by local resident Leneuoti Tuaua —in February this year petitioned the highest court in the nation to hear the citizenship lawsuit after it was dismissed by the lower court and the dismissal was upheld by the appeals court in Washington D.C.
Two weeks ago, the defendants — the US State Department and senior officials — through the Solicitor General of the United States, argued that the lower court as well as the appeals court made the right decision in dismissing the lawsuit.
The defendants maintain that only the US Congress has the authority to grant citizenship to outlying territories, such as American Samoa — and asked the court to deny the petition to hear the case. Supporting the defendants are ASG and Congresswoman Aumua Amata, who are intervenors in the case. (See Samoa News editions May 12, 18 and 19 for details).
Responding to the defendants’ move to deny hearing the case, Olson filed a reply brief, on Monday, saying that this case addresses birthright citizenship and whether Insular Cases should continue to be relied upon to deny constitutional rights in U.S. territories.
“All agree that the question presented governs the citizenship of tens of thousands of persons born in American Samoa — and in turn affects their legal rights and daily lives in countless ways,” Olson said in his reply brief. He claims that the respondents — referring to the defendants — admit that the question governs whether millions more, born in other territories, are constitutionally entitled to U.S. citizenship, or can be stripped of it at Congress’ whim.
Additionally, the government (referring to the defendants) never denied that the question presented cannot arise as to any other Territory because Congress today excludes only American Samoa from birthright citizenship.
“Instead, the government astonishingly stakes its defense of the statute on an expansive reading of the Insular Cases — rulings infused with indefensible racial biases… that have no bearing on the Citizenship Clause or American Samoa,” he argued.
He also says that the “Solicitor General, in attempting to shield the statute, feels compelled not merely to interpose those inapposite, oft-maligned decisions, but to urge their extension, is powerful proof that review is appropriate.”
Olson further argued that the government’s contention that Congress has plenary power in granting citizenship — and that birthright citizenship should be withheld unless and until Congress and American Samoa’s government assent — is not a reason to deny certiorari.
“It is a merits argument that simply begs the question presented, which is precisely whether the Constitution leaves birthright citizenship in U.S. Territories to the political process—a process that has thus far failed American Samoa, which has repeatedly sought legislative relief, only to be rebuffed by Congress,” he said.
“Whether the Constitution permits that condition to persist is a question only this Court can conclusively resolve,” Olson said. “For thousands of American Samoans — many of whom have selflessly defended the Nation that denies them equal dignity — a definitive answer is long overdue.”
In a news release Monday afternoon, Olson said, “We hope that the Supreme Court will accept review to once again make clear that Congress has no power to turn off or redefine the Constitution’s guarantee of birthright citizenship.”
 “Failure to grant review would place at risk the citizenship status and constitutional rights of more than 4 million Americans who live in U.S. territories,” said Neil Weare, who argued the case before the lower court, and is President and Founder of ‘We the People Project, a non-profit organization that advocates for equal rights and representation for the over 4 million Americans living in U.S. territories.”
In his reply brief, Olson notes that the “government’s claim that Court must defer to the political process to safeguard American Samoa’s self-determination — because its people never desired citizenship — is simply untrue.”
When American Samoa ceded sovereignty to the United States a century ago, its people “thought they were American Citizens”, he said, citing a 1931 federal commission report.
He also said, “ASG speculates that American Samoans do not desire citizenship because it would threaten various facets of their culture — fa’a Samoa.”
“That claim falls apart upon inspection,” he said and noted that intervenors had argued that if “all American Samoan people [were] granted United States citizenship,” hereditary-chieftainship and land-alienation practices “could be subjected to scrutiny under the Equal Protection Clause.”
However, he said that Clause, like the Fifth Amendment, “is not confined to the protection of citizens”; it protects “all persons … without regard to any differences of race, of color, or of nationality.”
According to the plaintiffs’ attorney, ASG’s opposition to a Supreme Court review of the case is based on the “mistaken belief that recognition of citizenship would threaten cultural preservation laws — an experience not borne out in other territories where birthright citizenship is recognized by statute.”
Additionally, American Samoa’s current leaders also failed to recognize that attempts by American Samoa to seek legislative recognition of birthright citizenship decades earlier were unsuccessful.
“When our forefathers ceded sovereignty to the United States, they believed that in return we would be recognized and respected as U.S. citizens on equal status with other Americans,” said local attorney Charles Alailima who also represents the plaintiffs.
“With Congress rejecting earlier attempts by our people to be recognized as citizens, the Supreme Court now has the opportunity, and I dare say even the responsibility, to answer whether our leaders were right.”
According to attorneys for the plaintiffs, the Supreme Court is expected to decide whether to grant the petition for certiorari by the end of June.

The Samoa News
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