The U.S. Supreme Court declined to hear a case Monday that sought to challenge the lack of birthright citizenship in American Samoa and overturn racist legal precedents that have been used to justify different treatment for residents of U.S. territories compared with those in U.S. states.

John Fitisemanu, a Utah resident and lead plaintiff in the Fitisemanu v. United States case, said in a press release that he was deeply disappointed by the court’s decision.

“I was born on U.S. soil, have a U.S. passport, and pay my taxes like everyone else. But because of a discriminatory federal law, I am not recognized as a U.S. citizen,” he said. Like other people born in American Samoa, Fitisemanu is a U.S. national and must go through a naturalization process in order to receive U.S. citizenship.

But the court’s decision not to hear the Fitisemanu case was met with relief from top American Samoan political leaders who had urged the justices to let the lower court’s decision stand.

The Insular Cases are a series of legal decisions regarding U.S. territories that established the U.S. Constitution doesn’t fully extend to residents of the territories. The Fitisemanu case sought to overturn the rulings in part because they’re rooted in racism, with justices referring to the “alien races” living in U.S. territories. The same court that wrote the Plessy v. Ferguson decision that enshrined the “separate but equal” doctrine justifying racial segregation is also behind the Insular Cases.

However, the cases also are seen by many Indigenous peoples in the territories as a form of protection of their unique customs — traditions that might be challenged if the rulings were to be overturned.

Michael Williams, an attorney who represents the government of American Samoa and its non-voting House delegate Congresswoman Aumua Amata Radewagen, welcomed the Supreme Court’s decision.

“We view this as a tremendous victory for American Samoa. It’s the second time we’ve won this lawsuit,” Williams said, referring to a similar lawsuit in 2014. “We hope it’s the last time.”

Radewagen said in a press release that the U.S. Supreme Court “chose to respect the self-determination of the people of American Samoa, and the emphasis our people place on preserving our Fa’a Samoa (the Samoan way).”

“Our people value American Samoa’s right of self-determination, with great love for the United States as expressed in our people’s high rate of service to the country,” she said.

Dan Aga, who leads the American Samoa Office of Political Status and Constitutional Review, said the territorial government doesn’t support the racism behind the Insular Cases but worried that overturning them could threaten traditional practices such as the territory’s communal land ownership system.

“A case like this represented an existential threat to our way of life,” he said.

Changing Cultural Practices

Charles Ala’ilima, an American Samoan attorney who helped represent Fitisemanu and other plaintiffs, contends that those concerns are overblown.

He doesn’t think U.S. citizenship needs to be a barrier to maintaining cultural practices and limiting land ownership. Residents of the Northern Mariana Islands, another U.S. territory, limit land ownership but also receive birthright citizenship. He thinks that American Samoan cultural practices can still be justified under the U.S. Constitution.

He said the local communal land ownership system is already threatened by local chiefs who want to put land in their own names.

“The individualization of land here is occurring and having nothing to do with citizenship,” Ala’ilima said.

Aga and others contend that the court isn’t the right venue for granting birthright citizenship.

Line-Noue Memea Kruse, author of “The Pacific Insular Case of American Samoa,” says other U.S. territories have received U.S. citizenship following local plebiscites that voice public support for the idea and said American Samoans should decide whether that’s the route they want to go, not the Supreme Court.

“The deck is pretty well stacked against people in the territories and this is just another example of that.” — Neil Weare, Equally American

She said what’s at stake goes beyond the communal land system and includes the fact that the local Senate is composed entirely of chiefs rather than democratically elected officials. She believes if the American Samoan people want U.S. birthright citizenship, they’ll demand a vote on it.

“The issue hasn’t been brought in a plebiscite because there is no overarching desire to have a closer relationship with America,” she said.

Aga noted American Samoa had three political status commissions in 1970, 1979 and 2006. He helped lead the one in 2006 and says there wasn’t a strong appetite then or now to change the territory’s political status.

“Our relationship with the U.S. is all important,” he said. “At the same time or even equally important is the deep desire to protect what is our heritage.”

Instead of granting birthright citizenship to everyone in American Samoa, Radewagen wants Congress to instead make it easier for U.S. nationals to get citizenship.

She introduced a bill last year that would get rid of the requirement that American Samoans move to another U.S. jurisdiction to get citizenship. Currently, American Samoans must establish residency for at least three months before they can apply for naturalization, which involves paying fees and passing tests.

Broader Implications

But not taking up the Fitisemanu case has ripple effects beyond American Samoa. The Supreme Court is effectively leaving in place the case law that’s used to justify treating residents of U.S. territories differently, even when they are U.S. citizens.

Earlier this year, the court ruled against Puerto Rico residents who wanted the right to Social Security Disability Insurance, which residents of U.S. states have the right to receive.

Neil Weare, who works with Ala’ilima at the nonprofit Equally American that represented Fitisemanu and other plaintiffs, said all territories are affected by Monday’s decision and the lack of clarity around the applicability of the Constitution to U.S. territories.

“The Supreme Court left unresolved the question whether people born in U.S. territories have any right to citizenship at all,” Weare said.

“The question becomes, can Congress then take away the citizenship?” Ala’ilima asked.

“A case like this represented an existential threat to our way of life.” — Dan Aga, American Samoa Office of Political Status and Constitutional Review

Monday’s decision was particularly disappointing to Weare, Fitisemanu, Ala’ilima and others because Supreme Court Justice Neil Gorsuch this year indicated his desire to overrule the Insular Cases. Justice Sonia Sotomayor criticized them as well. 

But that wasn’t enough to sway the court.

“We’ve been saying for a while now that it’s clear that America has a colonies problem and that almost even worse the U.S. refuses to recognize, much less address that. Today’s inaction by the Supreme Court is just another data point towards that end,” Weare said.

Weare said that his organization is deliberating on whether to appeal another case to the Ninth Circuit that seeks to establish absentee voting rights for plaintiffs living in Guam and the U.S. Virgin Islands. Vicente Borja, lead plaintiff in that case, Borja v. Nago, was a Hawaii resident who moved to Guam and was unable to vote absentee in Hawaii for president.

Weare noted another case related to teachers’ pensions in Puerto Rico is being appealed to the Supreme Court. But it’s still an open question as to whether the court will hear it.

“People in the territories can’t vote for president and have no voting representation in Congress and also Supreme Court justices are nominated by a president whom residents of the territories can’t vote for and confirmed by a Senate in which they have no representation,” Weare said. “So the deck is pretty well stacked against people in the territories and this is just another example of that.”

Aga from American Samoa agrees the Insular Cases are problematic but believes something needs to be ready to replace them that will actively protect American Samoan customs if the cases are going to be overturned.

“We became something of a pawn in that effort (to overturn the Insular Cases) and so it’s a relief that it didn’t reach the Supreme Court,” he said.