Hastings Constitutional Law Quarterly


Sean Morrison


Citizenship is part of the foundation of being American. Yet the United States treats some of its own as second class citizens. Deep in the South Pacific, forgotten amidst the vast ocean and coconuts, is a small series of islands that represent the only U.S. jurisdiction below the equator. American Samoa remains the last American territory that does not recognize its inhabitants as citizens. For more than a century, American Samoans have fought American wars, pledged allegiance to the American flag, and played a significant amount of American football, yet are categorized as U.S. nationals rather than citizens.

Recently, some Samoans lost a suit against the Department of State to declare all those born in American Samoa as U.S. citizens under the Fourteenth Amendment's citizenship clause in the case of Tuaua v. United States. The case resurrected a series of early twentieth century Supreme Court decisions concerning American expansion and the territories known as the Insular Cases. These cases developed a framework for applying parts of the Constitution to territories without fully accepting them as American. As one justice described it, the territories are "foreign to the United States in a domestic sense."

However, the concept of citizenship is not necessarily welcomed by Samoans, even while they remain adamantly pro-American. Despite significant Western influence, they have managed to maintain their cultural institutions dating back thousands of years. They fear that citizenship, and the Constitutional responsibilities that come with it, may erode what is left of their culture. The Insular Cases, once devised to subvert a people, are now seen as the last salvation of a culture.

This paper navigates the Insular Cases and subsequent case law to determine whether citizenship for American Samoans is a fundamental right. In Tuaua, the plaintiffs sought to overturn the Insular Cases, while the court viewed the Insular Cases as a ban on citizenship. However, this paper finds a path to provide citizenship for American Samoans within the Insular Cases' doctrine that would protect their rights as well as their culture and institutions.