Fitisemanu v. U.S., Deemed Not “Fit” for Review: A Missed Opportunity to Extend the Citizenship Clause to American Samoans

Blog Post | 111 KY. L. J. ONLINE | November 03, 2022

Fitisemanu v. U.S., Deemed Not “Fit” for Review: A Missed Opportunity to Extend the Citizenship Clause to American Samoans

By: Tiffanie E. Tagaloa, Staff Editor, Vol. 111

In U.S. v. Vaello Madero, the Supreme Court determined that “[r]esidents of Puerto Rico and other U.S. territories do not have a constitutional right to receive certain federal benefits that the government provides to people who live in the 50 states.”[1] The majority opinion written by Justice Brett Kavanaugh rejected the argument that the federal Constitution guarantees the equal treatment of all and instead highlighted that many federal laws treat the “territories differently from the state.”[2] Yet, Justice Neil Gorsuch authored a concurrence opinion in which he posited that the Insular Cases, often used to justify the varied treatment of residents living in territories governed by the United States, relied on outdated racial stereotypes and had no foundation in the federal Constitution and should therefore be overturned.[3] Justice Gorsuch was disappointed that the Vaello Madero case did not provide an opportune time to do such and was eagerly waiting for a more appropriate case to appear in front of the Supreme Court challenging the doctrine of territorial incorporation; even referencing a case that at-the-time was pending before the Supreme Court.[4] Sadly, on October 17, 2022 the Supreme Court denied certiorari for Fitisemanu v. U.S.,[5] and Justice Gorsuch missed the moment he was hoping for.

The Insular Cases were a series of Supreme Court decisions decided between 1901 and 1922 that analyzed how the federal Constitution should apply to territories acquired by the United States and to what degree.[6] Essentially, the Insular Cases made it so that not all of the protections provided by the U.S. Constitution could be applied in territories of the United States that were labeled “unincorporated” usually along with some sort of arbitrary and often racist, rationale.[7] The Insular Cases allowed for the federal government to exercise dominion and control over unincorporated territories indefinitely but denied them representation in the federal government with no genuine intention to provide a legitimate pathway to statehood.[8] Between 1900 and 1904, Samoans transferred their sovereignty to the United States with the understanding that Samoans would eventually become Americans citizens.[9] Although there were several attempts to grant American Samoans citizenship status, nothing was ever successful.[10] Thus, territories like American Samoa have been stuck in a citizenship limbo of sorts, not quite American but not a completely independent nation either.

Consider the following situation; John Fitisemanu was born in American Samoa, a territory of the United States.[11] He currently resides in Utah and even though Mr. Fitisemanu was born on American soil and pays taxes, he is not allowed to vote in state or federal elections and is not considered a citizen.[12] Mr. Fitisemanu, like anyone else born in American Samoa, has been discriminatorily labeled as a national with very limited protections and rights provided by the federal Constitution.[13] Along with two other American Samoans living in the States, Mr. Fitisemanu decided to pursue a legal remedy and petitioned the Supreme Court challenging the constitutionality of using the Insular Cases as a rationale to deny those born in territories birthright citizenship status as normally guaranteed by the Fourteenth Amendment.[14]

In Fitisemanu v. United States, the petitioners argued that the Citizenship Clause contained within the federal constitution should apply to all residents of territories to include American Samoa.[15] In the 10th Circuit, the ACLU filed an amicus brief in which they supported an interpretation of the Citizenship Clause that extended to American Samoans.[16] The ACLU further acknowledged that American Samoans have been a “part of the natural fabric” of the United States for more than a hundred years.[17] Therefore, Fitisemanu presented the perfect opportunity for the Supreme Court of the United States to overturn the Insular Cases on the record and also extend citizenship status to American Samoans in one fell swoop.

Not everyone is a fan of overturning the Insular Cases. In fact, the American Samoan government filed an amicus brief in which they argued that imposing citizenship on American Samoans would threaten and disrupt Fa’a Samoa and the political autonomy of the people.[18] Furthermore, there exists a belief that repurposing the Insular Cases could protect the cultural differences that exist between the States and unincorporated territories.[19] In fact, several courts have issued opinions that have attempted to breathe new life into the Insular Cases.[20] For example, in King v. Morton, the D.C. Circuit Court of Appeals relied on the Insular Cases to determine that a constitutional right to trial by jury may exist in American Samoa, an unincorporated territory, despite the fact that their own Constitution does not require jury trials.[21] Regardless, as long as the Insular Cases exist as legal authorities for any judiciary to rely on, it’s impossible for residents of unincorporated territories to exist independently from the United States. This forces the residents of unincorporated territories to follow the federal Constitution of the U.S. at the will of Congress while disregarding their own carefully crafted constitutions.

No matter the rationale, continuing to rely on the Insular Cases perpetuates a racist, flawed, and embarrassing line of reasoning that the Supreme Court should have openly rejected to follow, and Fitisemanu allowed them the perfect vehicle to do so. Furthermore, the Supreme Court should have explicitly declared that the most appropriate interpretation of the Citizenship Clause of the U.S. Constitution includes residents of all territories within the States, including American Samoa. Failing to grant certiorari for Fitisemanu was a missed opportunity for the Supreme Court.

[1] James Romoser, Excluding Puerto Rico from safety-net benefits doesn’t violate Constitution, court says, SCOTUSblog (Apr. 21, 2022, 1:28 PM), https://www.scotusblog.com/2022/04/excluding-puerto-rico-from-safety-net-benefits-doesnt-violate-constitution-court-says; United States v. Vaello Madero,142 S.Ct. 1539, 1544 (2022) (“[T]he limited question before this court is whether… Congress must extend Supplemental Security Income to residents of Puerto Rico… [t]he answer is no”).

[2] Romoser, supra note 1; Vaello Madero, 142 S.Ct. at 1544 (2022).

[3] Romoser, supra cite note 2; Ellena Erskine, Three American Samoans, in ask for birthright citizenship, answer Gorsuch’s call for a chance to overturn Insular Cases, SCOTUSblog (May 13, 2022, 5:50 PM), https://www.scotusblog.com/2022/05/three-american-samoans-in-ask-for-birthright-citizenship-answer-gorsuchs-call-for-a-chance-to-overturn-insular-cases; Vaello Madero, 142 S.Ct. at 1552 (2022) (Gorsuch, J. concurring).

[4] Erskine, supra note 3; Vaello Madero, 142 S.Ct. at 1556 (2022) (Gorsuch, J. concurring).

[5] See Amy Howe, Court declines to take up petition seeking to overturn Insular Cases, SCOTUSblog (Oct. 17, 2022, 11:00 AM), https://www.scotusblog.com/2022/10/court-declines-to-take-up-petition-seeking-to-overturn-insular-cases/.

[6] Christina Duffy Ponsa-Kraus, The Insular Cases Run Amok: Against Constitutional Exceptionalism in the Territories, 131 YALE L. J. 2449, 2452-55 (2022).

[7] Id. at 2455.

[8] Id. at 2454.

[9] Elizabeth K. Watson, Citizens Nowhere: The Anomaly of American Samoan's Citizenship Status after Tuaua v. United States, 42 U. DAYTON L. REV. 411, 415 (2017).

[10] Id. at 431-33.

[11] See Fitisemanu v. United States, 1 F.4th 862 (10th Cir. 2021), petition for cert. denied; Fitisemanu v. United States - Equal Citizenship in U.S. Territories, Equal Rights Now, https://www.equalrightsnow.org/fitisemanu (last visited Sep. 17, 2022).

[12] Brief for Petitioner at 10, No. 21-1394, 2020 WL 2216616, at *18.

[13] Brief for Petitioner supra note 11 at 2, 2020 WL 2216616, at *9.

[14] Id.

[15] Id.

[16] Gabriela Melendez-Olivera & Adriel I. Cepeda Derieux, “Nationals” but not “Citizens”: How the U.S. Denies Citizenship to American Samoans, ACLU, (May 22, 2020), https://www.aclu.org/news/voting-rights/nationals-but-not-citizens-how-the-u-s-denies-citizenship-to-american-samoans.

[17] Id.

[18] Brief for American Samoan Government and the Honorable Aumua Amata as Amici Curiae Supporting Respondents at 1-3, No. 21-1394.

[19] Ponsa-Kraus, supra note 6, at 2455-56.

[20] Id. at 2473-74.

[21] Id. at 2485.