Split CA10 on Citizenship, American Samoa: Fitisemanu v. US

Fitisemanu v. US

"For over a century, the land of American Samoa has been an American territory, but its people have never been considered American citizens. Plaintiffs, three citizens of American Samoa, asked the district court in Utah to upend this longstanding arrangement and declare that American Samoans have been citizens from the start. The district court agreed and so declared. Appellants, the United States federal government joined by the American Samoan government and an individual representative acting as intervenors, ask us to reverse the district court’s decision. We conclude that neither constitutional text nor Supreme Court precedent demands the district court’s interpretation of the Citizenship Clause of the Fourteenth Amendment. We instead recognize that Congress plays the preeminent role in the determination of citizenship in unincorporated territorial lands, and that the courts play but a subordinate role in the process. We further understand text, precedent, and historical practice as instructing that the prevailing circumstances in the territory be considered in determining the reach of the Citizenship Clause. It is evident that the wishes of the territory’s democratically elected representatives, who remind us that their people have not formed a consensus in favor of American citizenship and urge us not to impose citizenship on an unwilling people from a courthouse thousands of miles away, have not been taken into adequate consideration. Such consideration properly falls under the purview of Congress, a point on which we fully agree with the concurrence. These circumstances advise against the extension of birthright citizenship to American Samoa. We reverse. ... 

... BACHARACH, J., dissenting: As Justice Brandeis once observed, “the only title in our democracy superior to that of President is the title of citizen.” U.S. Dep’t of Homeland Sec. & U.S. Citizenship & Immigr. Servs., The Citizen’s Almanac 2 (2007) (cleaned up). The district court concluded that this title extends to the people of American Samoa, and I agree."