Barred from Birthright: The Constitutional Case for American Samoan Citizenship

by Tess Saperstein*

Unlike those born in any other United States territory, American Samoans are saddled with the ambiguous legal status of “nationals, but not citizens, of the United States.” American Samoans have repeatedly sued, arguing that they are entitled to birthright citizenship. However, the Court of Appeals for the District of Columbia and the Tenth Circuit have denied their claims, relying on the Insular Cases, a series of early twentieth century Supreme Court decisions dealing with territories acquired as a result of the Spanish-American War. Nonetheless, the modern Court has repeatedly expressed its reluctance to extend the logic of the Insular Cases because of their racist underpinnings. This Contribution argues for the Court to overturn the Insular Cases and grant American Samoans birthright citizenship.

For over a century, the United States government has branded American Samoans with a mark of inferiority. Despite owing “permanent allegiance” to the United States,¹ American Samoans are designated “nationals, but not citizens, of the United States at birth.”² Unlike those born in every other U.S. territory, who have been granted birthright citizenship by Congress,³ American Samoans are singled out through this anomalous legal status. As a result, they are systematically denied the rights that are guaranteed to U.S. citizens, such as voting in state or federal elections,⁴ running for state or federal office,⁵ or serving on juries.⁶ In 2012⁷ and 2018,⁸ American Samoans sued, asking the courts to deem unconstitutional the statute that relegates them to second-class status. Both the United States Court of Appeals for the District of Columbia Circuit⁹ and the Tenth Circuit¹⁰ denied their requests, stating that the infamous Insular Cases controlled the issue by establishing that citizenship can only be extended via congressional fiat. However, the Supreme Court recently expressed a desire to revisit the Insular Cases and whether their racist and outdated imperialist logic has any role in modern constitutional jurisprudence. In United States v. Vaello Madero, the Court held that the equal-protection component of the Fifth Amendment’s Due Process Clause does not require Congress to extend Social Security benefits to residents of Puerto Rico.¹¹ In his concurrence, Justice Gorsuch stated that “[t]he flaws in the Insular Cases are as fundamental as they are shameful.… [T]hey have no home in our Constitution or its original understanding.”¹² The Supreme Court should right this century-old wrong by overturning the Insular Cases and granting American Samoans birthright citizenship.

*****

In the wake of the United States’ acquisition of territory during the Spanish-American War, the Supreme Court decided a series of cases, known as the Insular Cases, which addressed whether “the Constitution, by its own force, applies in any territory that is not a State.”¹³ The Insular Cases addressed the applicability of certain portions of the Constitution in this context, such as the Uniformity Clause,¹⁴ the Export Clause,¹⁵ and jury rights.¹⁶ The Insular Cases established a theory of “territorial incorporation” in which the Constitution “applies in full in incorporated Territories surely destined for statehood but only in part in unincorporated Territories.”¹⁷ This was not based on constitutional doctrine, but on practical considerations related to the governance of newly acquired territory. The Insular Court stated these concerns explicitly, warning that “it is doubtful if Congress would ever assent to the annexation of territory upon the condition that its inhabitants, however foreign they may be to our habits, traditions, and modes of life, shall become at once citizens of the United States.”¹⁸

However, after ceding sovereignty in 1900, American Samoans initially believed that they had become United States citizens.¹⁹ After discovering that they were not classified as such, American Samoans expressed their desire for citizenship to the American Samoan Commission which was established by Congress to make recommendations regarding the governance of the territory.²⁰ The Commission unanimously agreed to recommend that they be granted full citizenship.²¹ In response to the Commission’s recommendation, legislation was repeatedly introduced in Congress between 1931 and 1937 which would have extended citizenship to American Samoa.²² However, the legislation failed every time, with members of Congress expressing concerns that they would be required to “‘take care’ of people from a ‘foreign land’ while millions of Americans remain[ed] unemployed and in precarious economic situations.”²³ Although the Senate unanimously passed legislation to recognize American Samoans as citizens, debates in the House repeatedly devolved into declarations of racial inferiority.²⁴ Members of Congress described American Samoans as “absolutely unqualified to receive [citizenship],” “poor unsophisticated people,” and unable “to appreciate the privilege [of citizenship].”²⁵

The Petitioners in Fitisemanu v. United States,²⁶ John Fitisemanu, Pale Tuli, and Rosavita Tuli have experienced firsthand the many burdens of being denied birthright citizenship as a result of American Samoa’s anomalous legal status. In Utah, where they reside,²⁷ state laws reserve numerous employment opportunities specifically for U.S. citizens or give preference to citizens in the hiring process.²⁸ The Petitioners’ unique status as American Samoans also imposes direct economic burdens as well because they are statutorily barred from receiving state-based public assistance.²⁹

Mr. Tuli is also unable to sponsor his aging parents, who are foreign nationals, so that they may relocate to his home state of Utah.³⁰ He also wished to “pursue a career as a police officer” but was barred from doing so because of his citizenship status.³¹ Mr. Fitisemanu has also been discouraged from applying for federal and state jobs that require U.S. citizenship.³² All of the Petitioners are taxpayers, yet they are “unable to meaningfully participate in the civic life of the very governments they as Americans help fund.”³³

Even if American Samoans sought to become U.S. citizens through naturalization, the process is expensive, burdensome, and time-consuming. There is also no guarantee that they would ultimately be successful. If an American Samoan attempts to become a naturalized citizen, they are generally treated the same as foreign nationals for most aspects of the naturalization process.³⁴ For example, despite the fact that the public education curriculum in American Samoa is taught in English and subject to U.S. educational standards, American Samoans must take and pass the U.S. Citizenship and Immigration Services’ English and civics test.³⁵ They also must pay government fees totaling $725, in addition to other expenses associated with naturalization.³⁶

*****

In Fitisemanu v. United States, before determining whether the Insular Cases were relevant to the question of American Samoan citizenship, the Tenth Circuit analyzed whether the Citizenship Clause itself decided the issue. Although the Tenth Circuit acknowledged that a constitutional provision may “apply by its own terms,”³⁷ thereby preempting the application of the Insular framework, the Fitisemanu court did not adhere to the “familiar principles of constitutional interpretation” which the Supreme Court has repeatedly affirmed.³⁸ These principles would have required a “careful examination of the textual, structural, and historical evidence.…”³⁹ Instead, the court impermissibly limited the scope of its interpretive inquiry, employing a novel plain-language standard in which the court failed to properly account for the many contemporary judicial opinions, dictionaries, maps, and censuses which indicated that territories would have been considered “in the United States” at the time the Fourteenth Amendment was written.⁴⁰ The court instead relied upon doctrine that was established forty years after the Fourteenth Amendment was written. The Tenth Circuit also failed to consider the significant influence the common law and Dred Scott v. Sandford had on the Framers in drafting the Citizenship Clause.⁴¹

The Insular Cases are not controlling on the question of citizenship because the Fourteenth Amendment establishes its own independent scope. “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.”⁴² If American Samoa is within the geographic scope of “the United States” as used in the Citizenship Clause, Congress would have no power to restrict citizenship because it would be granted automatically.⁴³

However, the Tenth Circuit’s interpretation of “in the United States” was improperly guided by the Insular Cases themselves. By referring to the Insular Cases’ distinction between incorporated and unincorporated territories, the Tenth Circuit invoked a doctrine that was established decades after the Fourteenth Amendment was written, thereby undermining the purpose of this initial inquiry: to determine the geographic scope of the Citizenship Clause at the time it was written.⁴⁴

The only Insular Case which involved a constitutional provision with a geographic component was Downes v. Bidwell, in which the Court interpreted the Uniformity Clause.⁴⁵ The Uniformity Clause states “all Duties, Imposts and Excises shall be uniform throughout the United States.”⁴⁶ In a plurality opinion, the Downes Court concluded that, “throughout the United States,” as used within the Uniformity Clause, did not include unincorporated territories.⁴⁷ However, this interpretation does not affect the Citizenship Clause analysis for several reasons. First, no opinion in Downes commanded a majority of the Court.⁴⁸ A majority merely concurred in the judgment that the Foraker Act, which imposed duties on imports from Puerto Rico, was constitutional.⁴⁹ Second, even if the logic of Downes could be extended to other constitutional provisions, the Supreme Court subsequently acknowledged its limited reach. Concurring in another Insular Case, Justice White stated that Downes was controlling “for the purposes of the [U]niformity [C]lause.”⁵⁰ Additionally, in Gonzales v. Williams, the Insular Court explicitly declined to address the issue of birthright citizenship among those born in the territories, indicating that the Court did not view the issue as having been previously decided.⁵¹ Finally, in Dooley v. United States, which was decided the same day as Downes, the Court further differentiated the Uniformity Clause from the Citizenship Clause, stating that the power to tax is firmly within Congress’s domain.⁵²

Instead of affording proper weight to the common law, the Tenth Circuit found the Insular Cases’ distinction between incorporated and unincorporated territories to be instructive.⁵³ Although the court acknowledged the extensive historical evidence that the territories would likely have been considered a part of the United States since “Americans from the era preceding the ratification of the Fourteenth Amendment … harbored an expansive understanding of the geographical scope of their country,” the court did not find this evidence determinative.⁵⁴ The Tenth Circuit did acknowledge the Supreme Court’s ruling in United States v. Wong Kim Ark that the Fourteenth Amendment “affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country.”⁵⁵ However, the court described Wong Kim Ark’s discussion of common law as “an invocation of persuasive authority rather than an incorporation of binding caselaw.”⁵⁶

The Supreme Court has cautioned that it is particularly important to consider the meaning of a constitutional provision at the time it was adopted when the provision incorporates a pre-existing common law right.⁵⁷ Nonetheless, the Tenth Circuit derided the district court for giving too much weight to the common law doctrine; the majority stated that common law can “shed[] light” on the meaning of the Citizenship Clause, but Wong Kim Ark “does not incorporate wholesale the entirety of English common law as governing precedent.”⁵⁸

However, the Tenth Circuit misunderstood the purpose served by common law in constitutional interpretation. The district court did not find the doctrine of jus soli (birthright citizenship) to be determinative merely because the Supreme Court said in Wong Kim Ark that the Citizenship Clause must be interpreted in the light of the common law.⁵⁹ The district court was heeding the Court’s guidance that the Citizenship Clause must be interpreted in light of the common law because “the principles and history of [the common law] were familiarly known to the framers of the constitution. The language of the constitution … could not be understood without reference to the common law.”⁶⁰ Therefore, as the district court properly recognized, the common law speaks to the prima facie issue of the geographic scope of the Citizenship Clause.⁶¹

Further guidance can be found in the Slaughter-House Cases, where the Supreme Court addressed the Citizenship Clause’s purpose and broader implications only five years after the Fourteenth Amendment was ratified.⁶² The Court recognized that the Citizenship Clause’s main purpose was to “overturn[] the Dred Scott decision by making all persons born within the United States and subject to its jurisdiction citizens of the United States.”⁶³ As Judge Bacharach stated in his Fitisemanu dissent, in concluding that “African Americans couldn’t become citizens even if they had been born in the United States,” Dred Scott repudiated the “common law’s recognition of birthright citizenship.”⁶⁴ As the Slaughter-House Court explained, the Citizenship Clause was adopted to “put[] at rest” the mistaken notion that those “who had been born and resided always in the District of Columbia or in the Territories, though within the United States, were not citizens.”⁶⁵ Dred Scott provides important context to the framing of the Citizenship Clause, yet the Fitisemanu majority failed to even mention it.⁶⁶

In Afroyim v. Rusk, the Court further expounded on the significance of Dred Scott in relation to the Fourteenth Amendment.⁶⁷ The Afroyim Court explained that the Citizenship Clause ensured that African Americans’ newly granted citizenship wasn’t subject to the whims of subsequent Congresses that may wish to return to the status quo under Dred Scott.⁶⁸ To suggest that citizenship in American Samoa may only be extended by the grace of Congress would directly contradict the core purpose of the Fourteenth Amendment.⁶⁹

*****

The Tenth Circuit cited Justice White’s concurrence in Downes as evidence that the Citizenship Clause does not grant birthright citizenship to American Samoans; the court noted that Justice White “specifically mentioned citizenship as the type of constitutional right that should not be extended automatically to unincorporated territories.”⁷⁰ However, Justice White’s reasoning is appalling to modern readers and has no place in modern jurisprudence. He illustrates the problem of birthright citizenship with a hypothetical in which citizens discover “an uncivilized race, yet rich in soil, and valuable to the United States for commercial and strategic reasons.”⁷¹ A system of birthright citizenship, he argued, would “inflict grave detriment on the United States” because it would lead to “the immediate bestowal of citizenship on those absolutely unfit to receive it.”⁷² These racist distinctions regarding who was worthy of constitutional protection pervaded the Insular Cases.⁷³ Even the Tenth Circuit acknowledged, “not only is the purpose of the Insular Cases disreputable to modern eyes, so too is their reasoning.”⁷⁴ Given that its roots are in white supremacy, any dicta in the Insular Cases regarding citizenship is unpersuasive.⁷⁵

The doctrine established by the Insular Cases cannot be separated from the reality that the Supreme Court’s decisions were motivated by practical and political concerns regarding the governance of foreign territories that were acquired as a result of the Spanish-American War.⁷⁶ The Insular Court needed to devise a system that would allow the mainland to exercise control over noncontiguous lands that were inhabited by people of different races, languages, religions, and legal systems.⁷⁷ These newly acquired territories differed from previous acquisitions in that, for the first time, there were almost no United States citizens residing there when the change in sovereignty took place.⁷⁸ Additionally, most of the native populations were not white.⁷⁹ Because historical experience made the label of “colonialism” anathema to Americans, “the answer to this conundrum had to be cloaked in an American constitutional mantle of facial respectability.”⁸⁰ Therefore, the new legal regime established under the Insular Cases allowed for flexibility. As the Court stated in Boumediene v. Bush, the Insular Court adopted the doctrine of territorial incorporation in order to avoid dealing with the “uncertainty and instability” which would occur if the Constitution applied in full to all territories.⁸¹

The Tenth Circuit applied the Insular framework to a new constitutional provision in contravention of the Court’s explicit warnings.⁸² The Supreme Court established in Reid v. Covert that citizenship preempts the applicability of the Insular Cases.⁸³ Reid concerned whether an American civilian may be tried by a military tribunal, in contravention of Article III and the Fifth and Sixth Amendments.⁸⁴ Although the crime had taken place abroad, the Court in Reid stated that the Insular Cases were inapplicable because “the basis for governmental power is American citizenship.”⁸⁵ The defendant in Reid was an American citizen, so she was entitled to all of the rights and liberties guaranteed by the Constitution.⁸⁶ Therefore, Reid stands for the proposition that, before the Insular Cases are even considered, it must first be established whether the affected individual is a citizen, since that question would be determinative.⁸⁷

Additionally, just two years ago in Financial Oversight & Management Board for Puerto Rico v. Aurelius Investment, LLC, the Court reaffirmed Reid’s refusal to extend the Insular Cases.⁸⁸ The Court declined to apply the Insular Cases to the issue of whether the Appointments Clause governed the selection of the Financial Oversight and Management Board for Puerto Rico.⁸⁹ The Court described the Insular Cases as “much-criticized” and stated that “whatever their continued validity we will not extend [the Insular Cases] in these cases.”⁹⁰ Citing a series of briefs and academic articles criticizing the Insular Cases, the Court chose to instead decide the case on alternate grounds.⁹¹

The Tenth Circuit justified its expansion of the Insular framework through a misreading of the Supreme Court’s precedent. The court relied upon Boumediene to demonstrate the continuing vitality of the Insular Cases.⁹² However, Boumediene is distinguishable. First, Boumediene dealt with the Suspension Clause, a constitutional provision that provides for writs of habeas corpus,⁹³ which, unlike the Citizenship Clause, does not define its own scope.⁹⁴ Second, the Court’s ultimate conclusion in Boumediene–that the constitutional provision at issue does apply to detainees in Guantanamo Bay–demonstrates that this Court has refined its interpretation of the Insular Cases.⁹⁵ In applying the Insular framework, the Court emphasized its limitations, namely that “[t]he Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply.”⁹⁶ The Court also noted that the Suspension Clause “must not be subject to manipulation by those whose power it is designed to restrain.”⁹⁷

The Court’s characterization of the Insular Cases in Boumediene is instructive. The Court stated that the Insular Cases “held that the Constitution has independent force in these territories, a force not contingent upon acts of legislative grace.”⁹⁸ Additionally, it stated that a territory’s status as “unincorporated” may not always be determinative since “over time the ties between the United States and any of its unincorporated Territories [may] strengthen in ways that are of constitutional significance.”⁹⁹ The Court thereby left room for evolving understandings of the Insular framework and flexibility regarding its application. The Court should clarify its precedent, officially overturn the Insular Cases, and affirm that American Samoans are entitled to birthright citizenship.

* Tess Saperstein is a J.D. Candidate (2023) at New York University School of Law. This Contribution arose out of a mock petition for certiorari for Fitisemanu v. United States, 1 F.4th 862 (10th Cir. 2021). Prior to publication, the Supreme Court denied certiorari. The views expressed herein are not necessarily the views of the author.

1. 8 U.S.C. §§ 1101(21), (22).

2. 8 U.S.C. § 1408(1).

3. Sean Morrison, Foreign in a Domestic Sense: American Samoa and the Last U.S. Nationals, 41 Hastings Const. L.Q. 71, 71–72 (2013).

4. See, e.g., Utah Const. art. IV, § 5; Utah Code Ann. § 20A‑2–101(1)(a); Haw. Const. art. II, § 1.

5. See, e.g., Utah Code Ann. § 20A‑9–201(1); Wash. Const. art. III, § 25; U.S. Const. art. I, § 2.

6. See, e.g., Utah Code Ann. § 78B‑1–105; Wash. Rev. Code § 2.36.070; 28 U.S.C. § 1865(b)(1).

7. Tuaua v. United States, 951 F. Supp. 2d 88 (D.D.C. 2013).

8. Fitisemanu v. United States, 426 F. Supp. 3d 1155 (D. Utah 2019).

9. Tuaua v. United States, 788 F.3d 300 (D.C. Cir. 2015).

10. Fitisemanu v. United States, 1 F.4th 862 (10th Cir. 2021).

11. 142 S. Ct. 1539 (2022).

12. Id. at 1554 (Gorsuch, J., concurring).

13. Boumediene v. Bush, 553 U.S. 723, 756 (2008).

14. See Downes v. Bidwell, 182 U.S. 244 (1901).

15. See Dooley v. United States, 183 U.S. 151 (1901).

16. See Balzac v. Porto Rico, 258 U.S. 298 (1922); Rassmussen v. United States, 197 U.S. 516 (1905), overruled on other grounds by Williams v. Florida, 399 U.S. 78 (1970).

17. Boumediene, 553 U.S. at 757.

18. Downes, 182 U.S. at 279–80.

19. Reuel S. Moore & Joseph R. Farrington, The American Samoan Commission’s Visit to Samoa, September-October 1930, at 53 (1931) (“After the American flag was raised in 1900 the people thought they were American citizens.”).

20. See id. at 53 (describing how one of the two chairmen of the Mau, a Samoan group, told the Commission that they wanted citizenship).

21. The American Samoa Comm’n, 71st Cong., The American Samoa Comm’n Rep. 268 (1931).

22. Ross Dardani, Citizenship in Empire: The Legal History of U.S. Citizenship in American Samoa, 1899–1960, 60 Am. J. of Legal History 311, 345 (2020).

23. Id. at 341.

24. Brief for Samoan Federation of America, Inc. as Amicus Curiae Supporting Plaintiffs-Appellees, Fitisemanu v. United States, 1 F.4th 862 (10th Cir. 2021) (No. 1:18-cv-00036-CW) 2020 WL 2490115, at *18–21.

25. Id. at *20.

26. Petition for Writ of Certiorari, Fitisemanu v. United States (No. 21–1394) (denied Oct. 17, 2022).

27. Complaint for Declaratory and Injunctive Relief, Fitisemanu v. United States, 426 F. Supp. 3d 1155 (D. Utah 2019) (No. 1:18-cv-00036-EJF), at ¶ 43.

28. See e.g., Utah Code Ann. § 17–18a-302 (stating district or county attorneys must be U.S. citizens); Utah Code Ann. § 34–30‑1 (giving U.S. citizens preference for public works projects).

29. Utah Code Ann. § 76–9‑1008(1)(b).

30. Complaint, supra note 27, at ¶ 75.

31. Complaint, supra note 27, at ¶ 59.

32. Complaint, supra note 27, at ¶ 7.

33. Complaint, supra note 27, at ¶ 52.

34. Complaint, supra note 27, at ¶ 77

35. Complaint, supra note 27, at ¶ 77(b).

36. Complaint, supra note 27, at ¶ 77(e).

37. Fitisemanu v. United States, 1 F.4th 862, 877 (10th Cir. 2021).

38. Zivotofsky v. Clinton, 566 U.S. 189, 201 (2012).

39. Id.

40. See Fitisemanu, 1 F.4th at 886–90 (Bacharach, J., dissenting).

41. Id. at 895 (“The drafters of the Citizenship Clause believed that the Thirteenth Amendment had already overturned Dred Scott and re-established the natural law of citizenship.”).

42. U.S. Const. amend. XIV, § 1 (emphasis added).

43. Examining Bd. of Eng’rs, Architects & Surveyors v. Flores de Otero, 426 U.S. 572, 589 n.21 (1976) (stating that the terms of certain constitutional protections could require the rights be extended to territories, thus placing them outside of Congress’s control).

44. Boumediene v. Bush, 553 U.S. 723, 843 (2008) (Scalia, J., dissenting) (“The proper course of constitutional interpretation is to give the text the meaning it was understood to have at the time of its adoption by the people.” (citing Crawford v. Washington, 541 U.S. 36, 54 (2004))).

45. 182 U.S. 244, 244 (1901).

46. U.S. Const. art. I, § 8, cl. 1.

47. 182 U.S. at 277–78.

48. 182 U.S. at 244 n.1. (“[I]t it is seen that there is no opinion in which a majority of the court concurred.”) (as reported by LEXIS).

49. Downes, 182 U.S. at 347.

50. Dooley v. United States, 183 U.S. 151, 165 (1901) (White., J., concurring).

51. 192 U.S. 1, 12 (1904) (“We are not required to discuss . . . the contention . . . that a citizen of Porto Rico, under the act of 1900, is necessarily a citizen of the United States.”).

52. Dooley, 183 U.S. at 166 (“The power of Congress to tax is a very extensive power. It is given in the Constitution, with only one exception and only two qualifications. . . . Thus limited, and thus only, it reaches every subject, and may be exercised at discretion.” (quoting License Tax Cases, 72 U.S. 462, 471 (1866))).

53. See Fitisemanu, 1 F.4th at 876 (“[T]he distinction between incorporated and unincorporated territories [is] firmly established in caselaw . . . .”); contra Christina Duffy Burnett, Untied States: American Expansion and Territorial Deannexation, 72 U. Chi. L. Rev. 797, 819 (2005) (stating the Insular Cases’ distinction between incorporated and unincorporated territories was unprecedented).

54. Fitisemanu, 1 F.4th at 877.

55. Fitsemanu, 1 F.4th at 871 (quoting Wong Kim Ark, 169 U.S. 649, 693 (1898)).

56. Id. at 873.

57. See Crawford, 541 U.S. at 54 (interpreting the Confrontation Clause in light of the common law hearsay exceptions).

58. Fitisemanu, 1 F.4th at 872.

59. Fitisemanu v. United States, 426 F. Supp. 3d 1155, 1190–91 (D. Utah 2019).

60. Wong Kim Ark, 169 U.S. at 654 (citations omitted).

61. Fitisemanu, 426 F. Supp. 3d at 1191 (“American Samoa is within the dominion of the United States because it is a territory under the full sovereignty of the United States—that is, American Samoa is within the ‘full possession and exercise of [the United States’] power.’” (alteration in original) (quoting Wong Kim Ark, 169 U.S. at 659)).

62. 83 U.S. 36 (1872).

63. Id. at 73.

64. 1 F.4th at 893 (Bacharach, J., dissenting) (citing Dred Scott v. Sanford, 60 U.S. 393, 404–05 (1857)).

65. Slaughter-House Cases, 83 U.S. at 72–73 (emphasis added).

66. 1 F.4th at 864–81 (holding “that the extension of United States birthright citizenship is impracticable and anomalous” without reference to Dred Scott).

67. 387 U.S. 253, 263 (1967) (“[I]t seems undeniable from the language [the Framers of the Fourteenth Amendment] used that they wanted to put citizenship beyond the power of any governmental unit to destroy.”).

68. Id. at 267–68 (“Citizenship is no light trifle to be jeopardized any moment Congress decides to do so under the name of one of its general or implied grants of power.”).

69. See, e.g., Fitisemanu, 1 F.4th at 897 (Bacharach, J., dissenting) (“The Citizenship Clause was thus designed to remove birthright citizenship from Congress’s domain, confirming the abrogation of Dred Scott and ensuring preservation of the citizenship that freed slaves had enjoyed under the common law.”).

70. Fitisemanu v. United States, 1 F.4th 862, 869 (10th Cir. 2021) (citing Downes v. Bidwell, 182 U.S. 244, 306 (1901) (White, J., concurring)).

71. Downes, 182 U.S. at 306.

72. Id.

73. See Downes, 182 U.S. at 282 (majority opinion) (stating “differences of race” raise “grave questions’’ as to what rights will be afforded to the inhabitants of newly acquired territories); Efren Rivera Ramos, Puerto Rico’s Political Status: The Long Term Effects of American Expansionist Disclosure, in The Louisiana Purchase and American Expansion, 1803–1898 163, 167 (Sanford Levinson & Bartholomew H. Sparrow eds., 2005) (“The [Insular Cases] were permeated by. . .a racially grounded theory of democracy that viewed it as a privilege of the ‘Anglo-Saxon race’ rather than as a right of those subjected to rule.”).

74. Fitisemanu, 1 F.4th at 870.

75. See, e.g., Gustavo A. Gelpí & Dawn Sturdevant Baum, Manifest Destiny: A Comparison of the Constitutional Status of Indian Tribes and U.S. Overseas Territories, 63 Fed. Law., Apr. 2016, at 38, 39–40 (stating the Insular Cases are “increasingly criticized by federal courts. . .as founded on racial and ethnic prejudices”).

76. See Juan R. Torruella, The Insular Cases: The Establishment of a Regime of Political Apartheid, 29 U. Pa. J. Int’l L. 283, 285 (2007) (“[T]he Insular Cases translated the salient political dispute of the times, regarding the acquisition and governance of the foreign territories acquired as a result of the Spanish-American War of 1898, into the vocabulary of the Constitution.”).

77. Id. at 289–90 (“The de facto colonial status had to be validated by a legal regime that would de jure allow the United States to govern the new lands and their people with a free hand, untethered by the constitutional constraints that normally restrained the governmental structures of the continental United States.”).

78. Id. at 289.

79. Id.

80. Id. at 290.

81. 553 U.S. 723, 757 (2008).

82. See Reid v. Covert, 354 U.S. 1, 14 (1957) (“[N]either the [Insular] cases nor their reasoning should be given any further expansion.”).

83. Id. (“[The Insular Cases] involved the power of Congress to provide rules and regulations to govern temporarily [sic] territories with wholly dissimilar traditions and institutions whereas here the basis for governmental power is American citizenship.”).

84. 354 U.S. at 3.

85. Id. at 14.

86. Id. at 5–6 (“[W]e reject the idea that when the United States acts against citizens abroad it can do so free of the Bill of Rights.”).

87. Id. at 6 (“When the Government reaches out to punish a citizen who is abroad, the shield. . .the Constitution provide[s] to protect his life and liberty should not be stripped away just because he happens to be in another land.”).

88. 140 S. Ct. 1649, 1665 (2020) (citing Reid, 354 U.S. at 14).

89. Id.

90. Id. (citing Reid, 354 U.S. at 14)

91. Id.

92. Fitisemanu, 1 F.4th at 870 (citing Boumediene’s use of the Insular Cases as evidence that they remain applicable).

93. 553 U.S. at 732.

94. U.S. Const. art. I, § 9, cl. 2 (“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”).

95. 553 U.S. at 798.

96. Id. at 765.

97. Id. at 765–66.

98. Id. at 757.

99. Id. at 758 (citation omitted).

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Barred from Birthright: The Constitutional Case for American Samoan Citizenship

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Barred from Birthright: The Constitutional Case for American Samoan Citizenship

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