by Tess Saper­stein*

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).