The only US territory without US birthright citizenship
By Natasha Frost
It seems straightforward enough. As the U.S. Constitution put it, “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.”
And generally, that’s accurate. People born in any of the 50 states, one federal district and four major territories (Puerto Rico, the U.S. Virgin Islands, Guam and the Northern Mariana Islands) are automatically American citizens.
But in one U.S. territory, which has been held by the United States for more than 120 years and which is some 2,600 miles (4,184 kilometers) southwest of Hawaii, they aren’t.
Every April, people in American Samoa, which has a population of about 50,000, celebrate “Flag Day,” the most important holiday of the year, commemorating its five islands and two coastal atolls becoming part of the United States. Its residents serve in the U.S. military — indeed, more soldiers per capita come from the Pacific territory than from any other U.S. territory or state. If they choose to leave their island home, they can live anywhere else in the United States they like. They even hold American passports.
But they aren’t United States citizens. Instead, American Samoans are U.S. “nationals,” a small but significant distinction that precludes them from voting, running for office and holding jobs in a narrow selection of fields, including law enforcement. They can become citizens after moving to the mainland, but the process is long, requires passing a history test and costs at least $725, before legal fees, without any guarantee of success.
Until quite recently, the difference between being a U.S. national and a U.S. citizen was not always closely observed. Many American Samoans living elsewhere in the United States voted in elections without knowing that they were ineligible to.
But under the Trump administration, that distinction became more closely observed. In 2018, a woman born in American Samoa ran as a Republican state House candidate in Hawaii, before learning that she was ineligible to run or even to vote. American Samoans serving as officers in the U.S. Army suddenly found that unless they underwent naturalization, they would be demoted.
A handful of American Samoans living in the United States have attempted to challenge the status quo. In a recent case, which the U.S. Supreme Court last month declined to hear, three American Samoans living in Utah sought to demonstrate the ways in which not having U.S. citizenship were harmful to them.
One said he had been criticized by his peers for not voting in elections; another was precluded from pursuing a career as a police officer, he said; a third said that as a noncitizen, she could not sponsor her ailing parents for immigration visas to the United States, where they could receive better health care. (Her father subsequently died before he was able to relocate.)
Perhaps surprisingly, the government of American Samoans, as well as a majority of its citizens, is opposed to its residents acquiring birthright citizenship, particularly by judicial fiat, said Michael F. Williams, a lawyer who represents the government.
In 1900, chiefs in American Samoa agreed to become part of the United States by signing a deed, which included protections for fa’a Samoa, a phrase meaning “the Samoan way” that refers to the islands’ traditional culture.
“The American Samoan people have concerns that incorporating citizenship wholesale to the territory of American Samoa could have a harmful impact on traditional Samoan culture,” Williams said. He added: “The American Samoans believe if they need to make this fundamental change, they should be the ones to bring it upon themselves, not have some judge in Salt Lake City, or in Denver, Colorado, or Washington, D.C., doing it.”
Yet the reasons American Samoans do not have birthright citizenship were not originally related to any effort to protect Samoan culture. Instead, a set of court cases in the early 20th century, known as the “Insular Cases,” established that U.S. territories were at once part of the United States and outside of it. The reason, the Supreme Court ruled in 1901, was that these territories were “foreign in a domestic sense,” “inhabited by alien races,” and that therefore governing them “according to Anglo-Saxon principles may for a time be impossible.”
Those calling for a legislative change include Charles Ala’ilima, a lawyer based in American Samoa.
“There’s only one class of citizens in the United States — except here in American Samoa,” he said. “What we have now is basically the imposition of second-class status on a people that are under the sovereignty of the government. That is the definition of colonialism.”
Some legal scholars contend that American Samoa is not entirely subject to the U.S. Constitution, allowing it to maintain certain features of life, including the sa, a prayer curfew in place in some villages, and traditional communal ownership of land. Imposing birthright citizenship, they argue, would put those traditions at legal risk.
But in the 1970s, a court in Washington, D.C., found that residents of American Samoa had the right to jury trials “as guaranteed by our Constitution” — even after a court in American Samoa said that introducing jury trials would be “an arbitrary, illogical and inappropriate foreign imposition.”
Introducing jury trials has made little difference to the Samoan way of life, Ala’ilima said, and there was no evidence to suggest that granting its people citizenship would either. In the Northern Mariana Islands, another U.S. territory, residents can restrict land ownership to people of native descent — while still receiving birthright citizenship.
“My impression is that at some level, they know that if they get upgraded to citizen, nothing’s going to happen,” he said, of the American Samoan government. Already, he added, a significant minority of American Samoans were citizens of the United States through descent.
But for others in the territory, Hawaii, a former U.S. territory that acquired statehood in 1959, stands as a warning. “The government of American Samoa looks at Hawaii and sees what has happened to the Native Hawaiians. Hawaii has become a playground for rich Americans; Native Hawaiian people are looking at crumbs,” Williams said.
“Programs that were established by the state government in Hawaii for the benefit of Native Hawaiians, including the Office of Hawaiian Affairs, have been struck down or limited by constitutional litigation, based on the argument that it would be unfair to help one category of citizens based solely on their race,” he added.
It may be that, to the extent American Samoa is already exposed to this risk, as some contend, granting birthright citizenship to its people would make little difference, beyond giving its people something that they are constitutionally owed. But for its leaders, and its deeply conservative people, the unknown consequences for now feel far too great.