Judge Clark Waddoups of Utah handed down a decision that people born in American Samoa should be citizens from birth, just as the people of Puerto Rico are. The next day he stayed his own decision, waiting for a federal appeal to settle the legal questions this brings up.
American Samoa is a small U.S. territory. Unlike the other U.S. territories, including Puerto Rico, American Samoa does not have citizenship. People born there are “nationals” rather than citizens. They can travel and work in the states, but they can’t vote in a state. Their passports say, “The bearer is a United States national and not a United States citizen.”
People born in Puerto Rico are U.S. citizens and can vote in presidential elections if they live in a state. Puerto Ricans were granted citizenship in 1917.
But American Samoa has never asked for citizenship. In fact, the government of American Samoa opposes automatic citizenship for Samoans, saying that such a law would interfere with their cultural and religious practices. The Resident Commissioner for American Samoa, Representative Aumua Amata Coleman Radewagen, said she was “disappointed” in the decision, and that she believed people born in American Samoa would be shocked to learn that they had suddenly become citizens of the U.S. without their request or approval.
Who asked for citizenship?
John Fitisemanu and two other Samoan nationals living in Utah filed suit asking for citizenship. The case was actually filed by an organization called the “Equally American Legal Defense and Education Fund.” This organization has filed several other cases trying to get the presidential vote for people from U.S. territories. Since the President of the United States is elected by the states through the Electoral College, and not by the people of the United States as individuals, this strategy has not worked.
Puerto Ricans and all other citizens of the United States can vote in presidential elections if they live in a state. They will also be able to vote in presidential elections in Puerto Rico once Puerto Rico becomes a state.
People from American Samoa can live and work in states, but cannot vote in any U.S. elections. They can become citizens of the U.S. through naturalization, like people from other countries. This makes American Samoans different from people born in other U.S. territories.
The 14th Amendment and the Insular Cases
Judge Waddoups based his decision on the 14th Amendment, which says, “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.”
The 14th amendment to the U.S. Constitution was passed in 1868, and was designed to provide equal citizenship to former slaves. The question is, is a person born in American Samoa also born in the United States? The Insular Cases, a series of Supreme Court cases from the turn of the 20th century, said that the island territories (including Puerto Rico and Samoa) weren’t really part of the United States. They weren’t incorporated into the U.S., the judges at the time said, so they weren’t really covered by the Constitution.
That meant that they weren’t covered by the 14th Amendment to the Constitution. The courts upheld this decision in 2015.
The Insular Cases have come under fire lately. Rep. Raul Grijalva introduced a House Resolution condemning them in October, 2019. The American Civil Liberties Union asked the Supreme Court to overrule them on the grounds that they are racist and objectionable to modern Americans.
The court cases Judge Waddoups is expecting will have to make decisions on the 14th Amendment and the Insular Cases.
Effects on the territories
Since Judge Waddoups has already stayed his decision to wait for appeals, his decision has no immediate effect on any of the territories. If the decision is upheld — that is, if the courts accept it and it becomes law — it could have some effects.
Determining that the 14th Amendment applies to the U.S. unincorporated territories could change things. One thing it wouldn’t change is the fact that residents of Puerto Rico can’t vote in presidential elections. The 14th Amendment says that people born in the United States “are citizens of the United States and of the State wherein they reside.” It doesn’t say that territories are states or that territories get a place in the Electoral College.
It doesn’t say that territories get a place in the Senate or the House, either. It doesn’t say clearly that the entire U.S. Constitution will apply in the territories — that’s one of the things that would have to be decided in the courts over the years.
It doesn’t guarantee equal rights to Puerto Rico or the rest of the territories. The Territory Clause of the U.S. Constitution still says that Congress makes all the rules for the territories.
At the moment, the Waddoups decision doesn’t change anything for Puerto Rico. This could change in the future, depending on the decisions made in the courts.