Skip to main content

Should American Samoans be citizens?

By Danny Cevallos, CNN Legal Analyst
updated 9:55 AM EST, Tue February 11, 2014
Danny Cevallos says Congress has the power to decide whether to grant citizenship to those born in American Samoa.
Danny Cevallos says Congress has the power to decide whether to grant citizenship to those born in American Samoa.
STORY HIGHLIGHTS
  • Danny Cevallos: American Samoans are right to be frustrated
  • He says Samoans are suing the federal government to get citizenship rights
  • Constitution gives the power to make that decision to Congress, he says
  • Cevallos: It seems fair to change law so that American Samoans get citizenship

Editor's note: Danny Cevallos is a CNN legal analyst and criminal defense attorney practicing in the Territories of the United States, including the U.S. Virgin Islands: St. Croix, St. Thomas and St. John; and the Federal District Court of Puerto Rico.

(CNN) -- American Samoans have every right to be frustrated.

The United States laid claim to these eastern islands of a South Pacific archipelago in 1900, and since that time, American Samoans have served in the U.S. military, including the wars in Iraq and Afghanistan.

Yet, those born in American Samoa receive passports declaring the holder is only a U.S. national, not a U.S. citizen. Noncitizen residents complain they are unable to vote in national elections or to work in jobs that require citizenship status. They also claim their birth status renders them ineligible for federal work-study programs in college, firearm permits and travel/immigration visas.

Danny Cevallos
Danny Cevallos

If they want to become citizens, American Samoans must relocate to another part of the United States to initiate the naturalization process, pay a $680 fee and be subjected to a moral character assessment, fingerprinting and the English/civics examination. Quite a process to become citizens of the nation that they consider their home.

American Samoans indeed have every right to be frustrated.

However, they have zero legal right to be U.S. citizens.

While it's true that they would likely win their case in nearly every court of public opinion, they will ultimately lose in all the courts that count: actual courts of law. As with many things, when it comes to citizenship, little is guaranteed to residents of the Territories.

American Samoans have challenged federal laws and policy that decline to grant citizenship. The federal district court in the District of Columbia granted the government's motion to dismiss the lawsuit, but the D.C. Circuit, the appellate court, is giving the American Samoans another chance to argue their case.

Ted Cruz renounces Canadian citizenship

The last American frontier

The U.S. Territories are the last American frontier. They are as rugged as the Wild West and arguably as picturesque. Because of patchwork governance and varying isolation from the mainland, their outward appearances run the gamut: from teeming, vibrant quasi-state to desolated, sun-blasted rock, all scattered to the corners of the globe.

So what of the residents of these Territories? They are people like you or me. Are they U.S. citizens? Or -- like the soil on which they live -- are they considered another "possession" of the United States?

The short answer is: They are whatever Congress wants them to be. Whether that sounds fair or not, there's little to dispute legally.

Territorial residents are not without any constitutional protections. The Supreme Court defined the extent to which the Constitution applies in Territories in a series of cases known to those of us who live or work in the Territories as the Insular Cases. These cases held that only specific "fundamental" constitutional rights are guaranteed to Territorial inhabitants.

The question then is whether the Citizenship Clause of the 14th Amendment applies to American Samoans. The Citizenship Clause provides that "[a]ll 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."

American Samoa is certainly "subject to the jurisdiction" of the United States. But residents must also be born "in the United States" for the constitutional right to attach. Unfortunately, for 14th Amendment citizenship purposes, the Territories have never been considered "in the United States."

No federal court has ever recognized birthright citizenship as a guarantee in unincorporated Territories. In fact, federal courts have held on many occasions that unincorporated Territories are not included within the "United States" for purposes of the Citizenship Clause. Because these residents have no Constitutional, automatic right to citizenship, Congress can pick and choose how they become citizens. In fact, it has done just that: granting citizenship at birth to residents of other Territories.

For example, residents of Puerto Rico and the U.S. Virgin Islands are citizens if born there. But that citizenship does not flow from any constitutional right. Rather, Congress has chosen to pass independent legislation giving those residents citizenship.

Indeed, Justice Ruth Bader Ginsburg of the Supreme Court observed in one opinion that the only remaining noncitizen nationals are residents of American Samoa and Swains Island. When it comes to citizenship in the Territories, Congress can giveth or it can choose not to giveth, and the Constitution gives those residents no recourse.

Annexation and inconvenience?

The public policy is clear. Courts have been reluctant to force Congress to grant citizenship to persons merely because the U.S. has annexed their homeland. Courts and the legislature alike cite the practical inconvenience to the federal government.

The theory: If the practice of acquiring Territories required endowing the inhabitants with citizenship of the United States, this would be too great an inconvenience to the government. Then again, imagine the inconvenience to the newly annexed inhabitants who suddenly find themselves without citizenship anywhere.

American Samoans have fought in our armed services for over a century, so it feels fundamentally unfair that they get short shrift when it comes to citizenship. The problem is, fairness cannot overcome the language of the Constitution and centuries of legal precedent.

Fair or not, American Samoans will likely lose this legal battle, even though the Court of Appeals has given them a glimmer of hope and a second chance, of sorts. Citizenship for them is not a constitutional right; it cannot be grafted onto them by any court.

Only Congress can choose to grant citizenship to Territorial inhabitants.

Follow us on Twitter @CNNOpinion.

Join us on Facebook.com/CNNOpinion.

The opinions expressed in this commentary are solely those of Danny Cevallos.

ADVERTISEMENT
Part of complete coverage on
updated 8:59 AM EDT, Mon September 22, 2014
You could be forgiven for thinking no one cares -- or even should care, right now -- about climate change, writes CNN's John Sutter. But you'd be mistaken.
updated 5:32 PM EDT, Sun September 21, 2014
David Gergen says the White House's war against ISIS is getting off to a rough start and needs to be set right
updated 9:00 AM EDT, Mon September 22, 2014
John Sutter boarded a leaky oyster boat in Connecticut with a captain who can't swim as he set off to get world leaders to act on climate change
updated 3:17 PM EDT, Mon September 22, 2014
Ruben Navarrette says making rude use of the Mexican flag on Mexican independence day in a concert in Mexico was extremely tasteless, but not an international incident.
updated 9:59 AM EDT, Mon September 22, 2014
Michael Dunn is going to stand trial again after a jury was unable to reach a verdict; Mark O'Mara hopes for a fair trial.
updated 7:15 PM EDT, Mon September 22, 2014
Is ballet dying? CNN spoke with Isabella Boylston, a principal dancer at the American Ballet Theatre, about the future of the art form.
updated 5:47 PM EDT, Fri September 19, 2014
Sally Kohn says it's time we take climate change as seriously as we do warfare in the Middle East
updated 3:27 PM EDT, Mon September 22, 2014
Laurence Steinberg says the high obesity rate among young children is worrisome for a host of reasons
updated 9:02 AM EDT, Fri September 19, 2014
Dean Obeidallah says an Oklahoma state representative's hateful remarks were rightfully condemned by religious leaders..
updated 3:22 PM EDT, Fri September 19, 2014
No matter how much planning has gone into U.S. military plans to counter the Islamic State in Iraq and Syria, the Arab public isn't convinced that anything will change, says Geneive Abdo
updated 11:44 AM EDT, Fri September 19, 2014
President Obama's strategy for destroying ISIS seems to depend on a volley of air strikes. That won't be enough, says Haider Mullick.
updated 9:03 AM EDT, Fri September 19, 2014
Paul Begala says Hillary Clinton has plenty of good reasons not to jump into the 2016 race now
updated 11:01 AM EDT, Fri September 19, 2014
Scotland decided to trust its 16-year-olds to vote in the biggest question in its history. Americans, in contrast, don't even trust theirs to help pick the county sheriff. Who's right?
updated 9:57 PM EDT, Thu September 18, 2014
Ruben Navarrette says spanking is an acceptable form of disciplining a child, as long as you follow the rules.
updated 11:47 AM EDT, Fri September 19, 2014
Frida Ghitis says the foiled Australian plot shows ISIS is working diligently to taunt the U.S. and its allies.
updated 3:58 PM EDT, Fri September 19, 2014
Young U.S. voters by and large just do not see the midterm elections offering legitimate choices because, in their eyes, Congress has proven to be largely ineffectual, and worse uncaring, argues John Della Volpe
updated 9:58 PM EDT, Thu September 18, 2014
Steven Holmes says spanking, a practice that is ingrained in our culture, accomplishes nothing positive and causes harm.
updated 2:31 PM EDT, Thu September 18, 2014
Sally Kohn says America tried "Cowboy Adventurism" as a foreign policy strategy; it failed. So why try it again?
updated 10:27 AM EDT, Thu September 18, 2014
Van Jones says the video of John Crawford III, who was shot by a police officer in Walmart, should be released.
updated 10:48 AM EDT, Thu September 18, 2014
NASA will need to embrace new entrants and promote a lot more competition in future, argues Newt Gingrich.
updated 7:15 PM EDT, Tue September 16, 2014
If U.S. wants to see real change in Iraq and Syria, it will have to empower moderate forces, says Fouad Siniora.
updated 8:34 PM EDT, Wed September 17, 2014
Mark O'Mara says there are basic rules to follow when interacting with law enforcement: respect their authority.
updated 9:05 AM EDT, Tue September 16, 2014
LZ Granderson says Congress has rebuked the NFL on domestic violence issue, but why not a federal judge?
updated 7:49 AM EDT, Tue September 16, 2014
Mel Robbins says the only person you can legally hit in the United States is a child. That's wrong.
updated 1:23 PM EDT, Mon September 15, 2014
Eric Liu says seeing many friends fight so hard for same-sex marriage rights made him appreciate marriage.
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT