US Appeals Court Rules: Samoans, Like Filipinos Are Not U.S. Citizens

by Joseph G. Lariosa
Rep. Tulsi Gabbard (HI-2-D), first American Samoan and Indian American member of the U.S. Congress.

Rep. Tulsi Gabbard (HI-2-D), first American Samoan and Indian American member of the U.S. Congress.

CHICAGO (JGL) – Like Filipinos “born in the Philippines during the territorial period, which ended in 1946,” American Samoans are not United States citizens by birth but rather are “non-citizen nationals at birth” based on statutory and not on constitutional grounds.

In a per curiam opinion, a panel of U.S. Court of Appeals in the District of Columbia Circuit led by Judge Janice Rogers Brown had affirmed the ruling of U.S. District Court Judge Richard J. Leon, granting the U.S. government motion to dismiss the case for declaratory and injunctive relief filed by five American Samoans led by Leneuoti Fiafia Tuaua and the Samoan Federation of America that the “Fourteenth Amendment extends to American Samoans and that people born in American Samoa are U.S. Citizens at birth.” The two other members of the panel are Judges Laurence H. Silberman and David B. Santelle.

Appellants Tuaua and Emy Fiatala Afalava, Va’aleama Tovia Fosi, Taffy-lei T. Maene, Fanuatanu Fauesala Lifa Mamea and Samoan Federation of America, Inc. immediately filed a motion for rehearing en banc and were given 15 days to respond with petition not to exceed 15 pages.

The Fourteenth Amendment, section 1 reads: “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.

No State shall make or enforce any law, which shall abridge the privileges or immunities of citizens of the United States; ?nor shall any State deprive any person of life, liberty, or property, without due process of law; ?nor deny to any person within its jurisdiction the equal protection of the laws.”

In affirming the lower court ruling, the panel said, “We sympathize with appellants’ individual plights apparently more freighted with duty and sacrifice than benefits and privilege, but the Citizenship Clause is textually ambiguous as to whether “in the United States” encompasses America’s unincorporated territories and we hold it “impractical and anomalous,” citing Reid v. Covert, 354 U.S. I (75) (1957), “to impose citizenship by judicial fiat – where doing so requires us to override the democratic prerogatives of the American Samoan people themselves.”


Attempting to distinguish the Philippines context because that “territory was acquired via conquest and because it was always the purpose of the U.S. to eventually withdraw its sovereignty,” the appellants argued “the extension of citizenship to the American Samoan people would necessarily implicate the U.S. citizenship status of persons born in the Philippines during the territorial period—and potentially their children thru operation of statute.”

The panel said, “When the Supreme Court declined to extend constitutional birthright citizenship to native American tribes, the Indian tribes, being within the territorial limits of the U.S. were not foreign states but were alien nations (with) distinct political communities.”

Citing the case of the Commonwealth of Northern Mariana Islands (CNMI), who recently won en mass birthright U.S. Citizenship, the panel said, “The doctrine of ‘territorial incorporation” announced in the Insular Cases distinguishes between incorporated territories, which are intended for statehood from the time of acquisition and in which the entire Constitution applies ex proprio vigore (by its own force), and unincorporated territories such as American Samoa, which are not intended for statehood and in which only certain fundamental constitutional rights apply by their own force.” Commonwealth of N. Mariana Islands v. Atalag, 723 F.2d 682, 588 (9th Cir. 1984).

If the CNMI was able to join Alaska, Guam, Hawaii and Puerto Rico as among the unincorporated territories to enjoy en masse birthright naturalization, the CNMI and the U.S. government had come up with a Covenant in 1978, Section 501(a) of which reads: “To the extent that they are not applicable of their own force, the following provisions of the Constitution of the United States will be applicable within the Northern Mariana Islands as if the Northern Mariana Islands were one of the several States.” Hence Amendment 14, Section 1 applies to CNMI.

Going against the appellants’ case is the contention of the Appellees led by intervenor American Samoa Government, Congresswoman Aumua Amata and Eni Fa’aua’a Hunkin Faleomavaega, Jr., a former non-voting Delegate to the United States House of Representatives from American Samoa’s At-large congressional district, who expressed concerns that the “extension of U.S. citizenship to the territory could potentially undermine these aspects of Samoan way of life, which could result in greater scrutiny under the Equal Protection Clause of the 14th Amendment, imperiling American Samoa’s traditional, racially-based land alienation rules.”


Despite American Samoa’s lengthy relationship with the U.S., the American Samoan people have not formed a collective consensus in favor of U.S. citizenship. Due to unique kinship practices and social structures inherent to the traditional Samoan way of life, including those related to the Samoan system of communal land ownership.

“Aiga (extended families) communally own virtually all Samoan land and matais (chiefs) have authority over which family members work what family land and where the nuclear families within the extended family will live,” the panel said.

Appellants and amici curiae contend the citizenship clause must under Supreme Court  precedent be read in the light of the common law tradition of jus soli or “the right to the soil.” (U.S. v. Wong Kim Ark, 169 us 649, 654 (1898).

The panel, however, said, the “imposition of citizenship on the American Samoan territory is impractical and anomalous at a more fundamental level. Anomalous to impose citizenship over objections of the American  Samoan people themselves as expressed thru their democratically elected representatives.”

The South Pacific islands of American Samoa have been a U.S. territory since (April 17) 1900, when the traditional leaders of the Samoan Islands of Tutuila and Aunu’u voluntarily ceded their sovereign authority to the US Government.

American Samoa, which has a population of  55,519 in the 2010 Census, is classified as non-self-governing territory by the United Nations General Assembly. It has a bicameral legislature and elected governor.

But the territory was under the supervision of the U.S. Secretary of the Navy since 1951. It is now under ultimate supervision of the U.S. Secretary of Interior.

Appellants also challenged Sec. 308(1) of the Immigration Act of 1952 and Administrative Procedure Act.

The appellants also argue that the INA Sec. 308(1) is unconstitutional because it provides that American Samoans are non-citizen U.S. nationals. And that they hold a State Department policy and practice unconstitutional and invalid under the Administrative Procedure Act (APA).


The U.S. State Department stamps their passports with “Endorsement Code 09,” which declares that the holder of the passport is a U.S. national but not a U.S. citizen.American Samoans could become naturalized U.S. citizens since 1952 but plaintiffs describe it as “lengthy, costly and burdensome.”

Despite careers in military, they are not allowed to vote or work in jobs that require citizenship status.

In a related case, Fr. Prisco Entines, a native of Balete, Aroroy, Masbate in the Philippines, and a U.S. Citizen, had filed a complaint for declaratory relief last April 3, 2013 against U.S. Department of State John Kerry, Consuelo Pachon, State Department Citizenship Appeal Legal Adviser; and Secretary Janet Napolitano of the Department of Homeland Security before Judge Leon for not bestowing U.S. Citizenship to “native inhabitants of the Philippines, especially to those who were WW2 conscripted and swore allegiance to the U.S. Constitution and the U.S. Flag under the doctrine of territorial incorporation from 11 April 1899 per 31 Statute, 1881, Treaty Series 344 and legally strengthened by the passage of 1902 Philippine Bill or Organic Act. The Act established the terms of the U.S. civil government’s sovereign rule over the Philippines until its July 4, 1946 Independence, which was officially declared by no less than U.S. President Truman.”

Ruling on the Entines’ case was held in abeyance pending the resolution of the Tuaua case. Entines is also on a lookout for someone, who can file an amicus curiae on his case.

Ms. Tulsi Gabbard (HI-2-D), Vice-Chair of the Democratic National Committee, elected in 2012, is the first American Samoan and the first Hindu member of the US Congress.


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