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Excerpted from: Benjamin E. Mannion, “A People Distinct from Others”: Service, Sacrifice, and Extending Naturalized Citizenship to American Samoans, 27 Transnational Law & Contemporary Problems 477 (Summer, 2018) (218 Footnotes)(Full Document)


samoa deniedArmy 1st Lieutenant Jason Togi of Pago Pago, American Samoa, was killed on August 26th, 2013, by an improvised explosive device during service in Afghanistan as part of the United States' ongoing Global War on Terror. 1st Lieutenant Togi enlisted in the United States Army in 2007 and received his commission as a Chemical Corps officer through the Army's ROTC program at Wentworth Academy in Missouri. He is survived by his widow Siosiana and his parents.

1st Lieutenant Togi joined the respected and solemn list of Americans who gave their “last full measure of devotion” during the sixteen-year-old Global War on Terror. 1st Lieutenant Togi joined Americans like Army Corporal Pat Tillman, Army Specialist Jessica Y. Sarandrea, Marine Lance Corporal Casey L. Casanova, Air Force Staff Sergeant Travis L. Griffin, Army 1st Lieutenant Darryn Andrews, and Army Specialist Matthew Martinek.

However, 1st Lieutenant Togi's story goes much deeper than his ultimate commitment to the United States. Like thousands of American Samoans who have served during the Global War on Terror, 1st Lieutenant Togi was born a United States national--not a citizen--and earned his citizenship as a result of his military service. American Samoans have enlisted in higher numbers then Army recruiting quotas have allotted for, even though they are not held as citizens upon entry into the service and are required to jump through additional hoops to ascend to positions of leadership within the military. American Samoans are not granted the privilege of citizenship from birth, and yet they have been steadfast in their support of the United States and its military endeavors.

While many Americans may consider honorable military service during war time a fair exchange for U.S. citizenship, the relationship between American Samoa and the United States calls into question the equity of this exchange--especially in light of the fact that so few American citizens born within the incorporated United States have volunteered to serve during the Global War on Terror, with even fewer serving in actual combat assignments overseas. In spite of their unwavering commitment to the United States, American Samoans are still not considered to be legally equivalent to their mainland compatriots in the eyes of the federal government they have sworn to serve.

Sadly, it was not the selfless sacrifice of American Samoans such as 1st Lieutenant Togi that thrust the issue of birthright citizenship for American Samoa into the legal spotlight, but the 2015 case of Tuaua v. United States. The plaintiffs in Tuaua, including three military veterans, sought to force the federal courts to grant American Samoan residents birthright citizenship under the auspice of the Fourteenth Amendment.

Tuaua required federal courts to reexamine when citizenship applies to current U.S. territories and whether that extension exists only through Congressional statute or if that grant is automatic upon birth within a U.S. territory via the Fourteenth Amendment. Despite the Court of Appeals affirming the dismissal of the plaintiff's case, the court outlined two key considerations for extending citizenship to American Samoans: (1) the reach of birthright citizenship under U.S. law analyzed through United States case law and statute (namely the Insular Cases); and (2) the danger to Samoan cultural nuances in extending citizenship to American Samoans.

Taking its cues from Tuaua, this Note will briefly discuss Samoan culture and the United States' relationship with American Samoa before turning to the expansion of the United States and the legal implications of extending rights and citizenship to those who inhabited those territories, beginning with the Native Americans. The Note will then analyze how the legal rationale of extending citizenship developed through the ultimate subversion of Native American tribal authority in the 19th Century and led to the legal policies enacted in the territories of the Philippines and Puerto Rico. Mapping out the lengthy legal history on this issue will illustrate why the Court of Appeals for the D.C. Circuit was correct in holding that birthright citizenship does not apply to American Samoa, absent a statutory grant from Congress.

However, this Note will ultimately recommend that Congress should, with the consultation and approval of the American Samoan government and people, grant a path to naturalized citizenship for American Samoans that is based on historical precedent in crafting nuanced grants of rights to acquired territories, the historical sacrifice of the American Samoan people, and the inherent injustice in resigning American Samoans to second-class status.

Part I will outline current U.S. statutes defining citizenship and the practical meaning behind those definitions for American Samoans. Part II will provide a history of American Samoa and discuss some of the cultural nuances and concerns outlined by the government of American Samoa in the Tuaua case.

Part III will then look back at U.S. history to illustrate the origin and evolution of extending citizenship and other rights to members of Native tribes. Part III-A will analyze the practice of acquisition of territory and extension of citizenship via treaty and the notion of sovereign parity between the U.S. and Native tribes; Part III-B will outline the transition from entreaty to plenary power by analyzing the implication of the Dawes Act of 1887 and the assertion of citizenship for Natives as a whole, as well as the virtual extinguishing of their internal societies as a result; Part III-C will discuss how the Supreme Court, by the late 19th Century, acquiesced to Congress' plenary power in determining the rights of Native peoples and the threats such blanket grants of birthright citizenship could pose to American Samoa.

Part IV will analyze how Congress' exercise of plenary power was applied to territorial gains in Puerto Rico and the Philippines and how the Supreme Court perpetuated Congressional authority to determine constitutional rights in the Insular Cases: Part IV-A will explore the Court's attempts to interpret constitutional rights imparted to residents of Puerto Rico and the Philippines following their cessation to the United States by Spain; Part IV-B will compare the acts taken by Congress in response to the Insular Cases and how the Court developed the practice of recognizing only those rights expressly granted by Congress.

Part V will then conclude that the court in Tuaua was correct in holding that the Fourteenth Amendment does not grant birthright citizenship to American Samoans, according to the historical “gloss” provided by legislative and judicial practice. However, this does little to alleviate the undue burden heaped upon those in situations like the plaintiffs in Tuaua. Therefore, using the history and case law surrounding the expansion of the United States as a guide--particularly the extension of only specified rights to U.S. territories as illustrated following the Insular Cases--Congress should extend the opportunity for naturalized citizenship to American Samoans without requiring them to leave their home, while crafting legislative protections for their unique society and property interests.

. . .

The Supreme Court has denied hearing the Tuaua case, leaving the holding by the Court of Appeals for the D.C. Circuit as determinative on grants of birthright citizenship for American Samoa. However, the dissent in King raises a fundamental point about the nature of “incorporation” as a whole, which is that “American Samoa in 1975 and ‘Porto Rico’ in 1922 are simply not analogous.”

Given the close development of American Samoa alongside the United States throughout the 20th and 21st centuries, and the active, selfless support of the American Samoan people, it is time that Congress assume responsibility and enact legislation to grant American Samoans naturalized citizenship if they choose to when they reach the age of majority, with the approval of the people and government of American Samoa.

This path to naturalized citizenship should draw on the lessons provided by our experiences with Native tribes, i.e., extending citizenship on a reciprocal basis by recognizing the inherent sovereignty of the American Samoan people and their political structure. Given the risks identified in section III-B regarding the destruction of Native tribes by extending blanket citizenship, it is no surprise that the leadership of American Samoa would look at the extension of citizenship to its residents as the prelude to the destruction of their political and societal structure. However, citizenship can also be an extension of rights and acceptance to individuals who have supported the United States and its ideals. This intent can be achieved by acknowledging the sacrifices those peoples have made.

Furthermore, as illustrated by the Insular Cases, granting American Samoans naturalized citizenship does not automatically incorporate that territory and destroy the notion of fa'a Samoa, which has held true in the Samoan islands for thousands of years. Like the opt-out provision in the Jones Act, any grant of citizenship to American Samoa could include a chance to opt-in for naturalized citizenship at the age of majority--granting Samoans a right to raise their children within their own culture while recognizing the equality of American Samoans within our own legal system.

Provisions could also be included within treaty language to protect their current system of land ownership and government until a time when American Samoans determine whether they wish to become incorporated into the United States, remain an un-incorporated territory, or attain independence. In light of the fact that the courts only recognize rights expressly granted, an agreement could be crafted in such a way that absolutely protects the nuances of American Samoan society.

As demonstrated by the plaintiffs in Tuaua, American Samoans are already turning out in record numbers to enlist in the United States military. Few events shape or reform someone's sense of culture and belonging than participating in the military or armed conflict, and deferring American citizenship for individuals who have historically answered the call to service while being treated legally as second-class Americans is an insult to their sacrifice. Recognizing the sacrifice and fidelity of American Samoans and granting them the same benefits and responsibilities of all Americans--mainland or island-bound--would represent a major step forward in fulfilling the ideals many American Samoans have enlisted to uphold.

However, the power to achieve these goals is solely on the shoulders of Congress, and it could be no greater expression of our bond with American Samoa and their dedication to the United States' ideals to extend to them citizenship through naturalization on terms that enshrine and celebrate their unique culture.

Benjamin E. Mannion is a J.D. Candidate at the University of Iowa College of Law, Class of 2018, and a former captain in the U.S. Army Field Artillery Corps.