Case Note: Fitisemanu v. United States: U.S. Citizenship in American Sāmoa and the Insular Cases
This article considers the problematic place of individual American Sāmoans who have been denied full membership within the American political community, first due to the colonialist arcane notion of being unfit for full membership in the American community on racial and cultural grounds embodied in the Supreme Court's Insular Cases, and second, because these same cases have been repurposed, ostensibly to protect Indigenous culture. To that end, this article reviews the United States Tenth Circuit Court of Appeals' recent decision in Fitisemanu et al.v. United States, where a split panel reversed the U.S. District Court recognition of birthright citizenship to those born within American Sāmoa. The Appeals Court's decision determined that American Sāmoa was not within the scope of the 14th Amendment to the U.S. Constitution through a controversial repackaging of the so-called Insular Cases, which have been criticized as being emblematic of racialist and colonialist jurisprudence that justified the denial of rights to inhabitants of American colonial territories.
Neither Within Nor Without: The Curious Case of U.S. Citizenship in American Samoa and the Insular Cases
This Article considers the problematic notion of citizenship rights among colonized Pacific Island Peoples since the nineteenth century. In particular, this Article reviews these rights for American Samoans in light of the recent Tenth Circuit Court of Appeals decision Fitisemanu v. United States. In Fitisemanu, the Tenth Circuit, relying on a repurposed notion of the Insular Cases, denied American citizenship rights to native born American Samoans despite the guarantees extended to individuals "born or naturalized in the United States" under the Fourteenth Amendment of the U.S. Constitution. The Article argues that this decision inappropriately narrowed the application of the Fourteenth Amendment with its extended application of the Insular Cases' fact-based "impractical and anomalous" inquiry to conclude the federal government's efforts to provide local government and fa'a Samoa was in effect a recognition of American Samoa's right of self-determination such that the objections of the territorial government to these citizenship rights militated against the recognition of citizenship. In the process of this discussion, this Article considers how substantially similar issues regarding New Zealand and British citizenship were implicated in the context of Western Samoa in Lesa v. Attorney General of New Zealand. The circumstances surrounding these cases involve similar legal and policy arguments which have perpetuated the "subject" status of colonized peoples and the initial denial of equality and citizenship rights. This underscores the historical resistance of colonial states to extend full membership rights to their colonized subjects. We contend that the effect of the Insular Cases' framework, despite claims to the contrary, has not protected Indigenous culture from American cultural and constitutional hegemony but continues to deny full legal membership into the political community that enjoys full sovereignty over the land of their birth.