State Relies on the Insular Cases for Idea Congress Can Turn Citizenship On and Off in U.S. Territories

In June, the U.S. Supreme Court held in Trump v. Barbara that under the Citizenship Clause of the Fourteenth Amendment “[a] child born on American soil and subject to American law” has a constitutional right to be recognized as “an American citizen.” Yet, Alaska prosecutors argue in an August 4th court filing that the Citizenship Clause does not apply at all to Michael Pese and others born in American Samoa, a U.S. territory since 1900. Without addressing the Supreme Court’s decision in Barbara or the text and history of the Fourteenth Amendment, Alaska prosecutors continue to rely on federal statutes and administrative policies that label someone born in American Samoa a “national, but not a citizen of the United States.” 

Based only on the Supreme Court’s controversial decisions in the Insular Cases, state prosecutors are pursuing multiple felony charges against Pese and other American Samoan residents of Whittier, Alaska, who had followed the guidance of local officials to check that they were “U.S. citizens” in the absence of any box for "U.S. nationals." If convicted, each face up to 5-10 years in jail. 

Michael Pese, his wife Tupe Smith, and two of their children in front of their apartment building in 2024

“It saddens me that Alaska continues to prosecute me and my family even after the United States Supreme Court has made clear that someone born on U.S. soil - as I was - has a constitutional right to be recognized as a U.S. citizen. As someone born in American Samoa, I am proud to be both an American and a Samoan. No one should be discriminated against or denied citizenship just because of where they were born in the United States,” said Michael Pese. Last year, Alaska charged Pese, his mother Miliama Suli, who has since passed away, and several siblings with felony perjury and voter misconduct. In 2023, Alaska State Troopers arrested his wife Tupe Smith on related charges after she won local election for school board, handcuffing her in front of their children. “We have gone from feeling like valued members of the community to feeling like unwanted criminals. This is not just wrong, it’s unconstitutional.”

Michael Pese, two of his children, and his mother Miliama Suli (deceased this year) at her store in Whittier in 2024

“The Supreme Court reasserted in its recent decision that neither the President nor Congress has the power to deny that someone born under the sovereignty and jurisdiction of the United States is a U.S. citizen. This is also true for state officials. Rather than follow the Supreme Court’s ruling, state prosecutors simply ignore it altogether,” said Neil Weare, Co-Director of Right to Democracy, who represents both Michael Pese and his wife Tupe Smith. 

“Instead of looking to the text and history of the Citizenship Clause, state prosecutors rely entirely on the discredited Insular Cases for the unsupported idea that Congress has the power to turn citizenship on or off for people born in U.S. territories like American Samoa. It is unfortunate that state prosecutors filing felony charges that could mean 5-10 years in jail don’t care more about what the U.S. Constitution says and requires,” Weare added.

“The question in this case is not that complicated - is American Samoa ‘in the United States’ as that was understood when the Fourteenth Amendment was adopted? For the last 125 years since American Samoa’s chiefs chose to become part of the United States in 1900, the answer has been a clear yes. If the people of the United States or American Samoa want to change their relationship, that is a decision to be made through a political process. But so long as American Samoa is a U.S. territory, the text and history of the Constitution command that no federal or state official has the power to deny Michael recognition as a U.S. citizen,” said Charles Ala’ilima, an American Samoan attorney who also represents Pese and Smith. 

Attorney Ala’iima added: “State prosecutors also continue to be confused by thinking that ‘U.S. national’ status is unique to American Samoa. Anyone born in Alaska or anywhere else in the United States is both a ‘U.S. citizen’ and a ‘U.S. national.’ What’s different is that people born in American Samoa are the only ‘U.S. nationals’ not also recognized as ‘U.S. citizens.’ That discrimination is what is unconstitutional here. This ongoing confusion by prosecutors highlights why American Samoa’s Governor and Congresswoman have asked the state to pursue administrative remedies rather than criminal prosecution.”

Questions about the power of the President or Congress to deny citizenship in U.S. territories have recently expanded beyond Alaska.

“The refusal of state prosecutors to examine, much less address, the Citizenship Clause and the Supreme Court’s Barbara decision is part of a broader trend targeting birthright citizenship in U.S. territories. The day of the Barbara decision, Vice President JD Vance announced on prime time television that he thought denying birthright citizenship in U.S. territories was ‘a great idea’ and that ‘we’re certainly looking at that.’ That led to the introduction in Congress of the ‘End Birthright Citizenship for Territories Act,’ which, if passed, would threaten citizenship by birth for anyone born in Puerto Rico, Guam, the U.S. Virgin Islands, and the Northern Mariana Islands starting in 2027,” Weare cautioned. “These threats to citizenship and our constitutional order go well beyond the actions of state prosecutors in Alaska.”

MIchael Pese is also represented by Stoel Rives and Dresner Zelinsky.

The State’s Opposition to the Motion to Dismiss is available here. 

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For more information, contact Neil Weare at [email protected] or 202-365-7427.