The State of Alaska is criminally prosecuting Tupe Smith, her husband Michael Pese, and eight other American Samoans because they are labeled “non-citizen” U.S. nationals by the federal government.

 In 2023, Alaska State Troopers handcuffed Tupe at home in front of her young children. Later, she was strip searched and forced to wear a prison uniform while being criminally processed.  In 2024, dozens of Alaska State Troopers descended on Whittier, Alaska, in a raid that targeted American Samoans in their homes, places of work, and even in the street. Seemingly unaware of American Samoa’s legal status as a U.S. territory, the State Troopers targeted them because their “place of birth was outside of the United States.” The Troopers asked about their “immigration status” and whether they had applied for state benefits, even though they were eligible for those benefits. Tupe and Michael now face up to 5-10 years in jail if convicted.

 The reason Alaska is criminally prosecuting Tupe and Michael is that the federal government unconstitutionally labels people born in American Samoa as “non-citizen” U.S. nationals. This discriminatory status was imposed on American Samoans in the early 1900s over the objections of those who signed the Deeds of Cession. Those leaders believed that after transferring full sovereignty to the United States that all American Samoans would be recognized as full U.S. citizens. They did not see U.S. citizenship as a threat to their land or culture.

 Anyone born in one of the fifty states or another territory like Guam or Puerto Rico is automatically recognized as both a U.S. citizen and a U.S. national. Thus, if Tupe and Michael were born anywhere else in the United States, they would not be facing potential jail time.

Read more at our case pages for Alaska v. Smith and Alaska v. Pese, including this motion to dismiss the charges filed against Michael.

 

Public officials in Alaska, like those in many states, are deeply confused by the label of “non-citizen” U.S. national, which was invented by the federal government and imposed on people in U.S. territories in the early 1900s. That’s no surprise. The law is extremely confusing. Indeed, most lawmakers are simply unaware the concept of “non-citizen” U.S. national even exists.

 In some cases, Alaska law defines people born in American Samoa as “U.S. citizens” for the purpose of certain state benefits. In other cases, state law treats U.S. nationals as having equal rights to U.S. citizens. However, many rights and benefits under state law are reserved for U.S. citizens alone, making “non-citizen” U.S.nationals ineligible.Further, Alaska’s Senior Benefits Payment Program, along with several other social welfare programs, are open to certain foreign nationals but altogether denied to “non-citizen” U.S. nationals born in American Samoa. State guidance on what rights and benefits “non-citizen” U.S. nationals are entitled to is either inconsistent or non-existent.

 Making things even more confusing, when American Samoans apply for certain state benefits in Alaska, they are automatically registered to vote even when they indicate they are a “non-citizen” U.S. national. Confused public officials have also told American Samoans to check they are “U.S. citizens” on state forms - including voter registration forms - in the absence of a box for “U.S. national,” telling them “it’s the same thing.” 

 Both Tupe and Michael were told by public officials to check that they were “U.S. citizens” on state forms, even after they both told the officials they were “U.S. nationals.” City officials in Whittier admitted they told American Samoans in their community that they could vote and run for office. 

 After Tupe accepted the call of her community in Whittier to run for the local school board and won (with 96% of the vote!), Alaska arrested her for “voter misconduct” on the grounds that she is a “non-citizen” U.S. national. She now faces two counts of up to five years in jail. Michael, who for years served as a volunteer firefighter in Whittier, is being prosecuted for both voter misconduct and “perjury,” which carries up to ten years in jail. All because the federal government unconstitutionally labels them as U.S. nationals but not U.S. citizens and the state government refuses to follow what the Citizenship Clause requires.

Read more at our case pages for Alaska v. Smith and Alaska v., including this motion to dismiss the charges filed against Michael. 

 

Unfortunately, yes. This problem is not limited to Alaska, but could affect American Samoans throughout the United States.

 In Oregon, hundreds of American Samoans were automatically registered to vote after lawfully applying for a drivers’ license or state identification cards. In Hawaii, an American Samoan woman who was the favorite to win a seat in the State House had to drop out of the race and faced potential criminal prosecution based on her belief she was eligible to vote and run for office. The U.S. Department of Justice has made prosecution of non-citizen voters one of its top enforcement priorities, with over 90 open investigations, which could put American Samoans at risk of criminal prosecution regardless what state they live in.

 But the problem goes beyond voting. Because federal and state laws are so often unclear about whether “non-citizen” U.S. nationals enjoy the same rights as “citizen” U.S. nationals, confused public officials often give American Samoans incorrect or conflicting guidance. As a result, many American Samoans unknowingly engage in conduct that states or the federal government consider unlawful for “non-citizen” U.S. nationals that would be perfectly legal for a U.S. citizen. That could lead to criminal prosecution at the state or federal level.

 Ultimately, because the federal government unconstitutionally labels American Samoans as “non-citizen” U.S. nationals, American Samoan throughout the United States could face serious risks of potential state or federal criminal prosecution.

 

American Samoa Governor Pulaali’i Nikolao Pula and Congresswoman Uifa’atali Aumua Amata Radewagen have both called on Alaska Governor Michael Dunleavy to pursue administrative solutions rather than criminally prosecute American Samoans in Alaska based on their status as “non-citizen” U.S. nationals. So far, those calls have fallen on deaf ears, with Alaska continuing to aggressively prosecute Tupe, Michael, and other American Samoans.

Governor Pula explained in his letter: 

This issue is personal for me. Before being elected to serve as Governor of American Samoa, I proudly served more than 4 decades in the Federal government. As part of my work with Interior, I was required to apply for a national security clearance. The form only provided the choice of “U.S. citizen” or “Foreign National.” I checked “U.S. citizen,” despite only being recognized by the federal government as a U.S. national. During my security clearance interview, they asked me why I checked “U.S. citizen” when I was not recognized as one. My answer was that I was born on U.S. soil in American Samoa; was taught that George Washington was the father of my country, and I pledged allegiance to the flag of the United States of America my entire life. It not only would have been inaccurate to say that I was a “foreign national,” but it would have erased my identity as both a proud American and a proud American Samoan. Needless to say, I got my security clearance, was not disciplined for checking the box that I was a “U.S. Citizen,” and went on to serve a distinguished career in federal service, and am now the elected Governor of my people.

I am proud of the value American Samoans place on being of service to their family and community, whether they live in American Samoa, Alaska or anywhere else in the United States. Our sons and daughters serve in the U.S. armed forces at higher rates than any other U.S. jurisdiction, and often serve as first responders, teachers, community leaders and more. I do not think members of our community should be facing criminal charges, much less 5-10 years in jail, simply for checking the wrong box or based on where they were born in the United States.

Congresswoman Amata explained in her letter:

Americans born in our territory have the same U.S. nationality and legal duty of allegiance to the United States as all other Americans. The allegiance of nationals and citizens from American Samoa nationwide is expressed in the fierce American patriotism of our island people, including what has for many years been a higher per capita rate of enlistment in the Armed Forces of the United States than any state or other territory. 

[U]nder 8 U.S.C. 1436 all Americans born and acquiring U.S. nationality in American Samoa can upon establishment of legal residence in a state apply for reclassification and certification as a U.S. citizen. This protocol as prescribed in federal law is confusing because it refers to what is really a process for reclassification and recognition of citizenship as “naturalization,” and makes allegiance to America a condition for compliance. Of course, American Samoans have U.S. nationality and allegiance with the U.S. under 8 U.S.C. 1408. 

Given the complexity of these state and federal civic status issues, it is no surprise the local state voters education information for state election officials or American Samoan national voter applicants did not alert those involved to the specifics of the voter qualification process. Under these circumstances, naturally I have doubts that American Samoans who registered to vote did so with knowledge that they had no claim of legal qualification to vote. 

 Read the full letters from Governor Pula and Congresswoman Amata, as well as a letter from the Pacific Community of Alaska, here.

 

The historical record is clear that “[a]fter the American flag was raised in [American Samoa in] 1900 the people thought they were American citizens.” That is, “the Samoans understood first that annexation by the United States meant the people would receive American citizenship.” 

Their belief was supported by U.S. law at the time the Deeds of Cession were signed. In 1892, the Supreme Court acknowledged the long-standing rule that following such a cession the inhabitants of the new territory automatically become citizens of the United States (Boyd v. Nebraska, 143 U.S. 135, 162 (1892)). Further, in 1898 the Supreme Court made clear that anyone born “within the territory” and “allegiance” of the United States - whether in a State or Territory - was a U.S. citizen based on the Citizenship Clause of the Fourteenth Amendment (United States v. Wong Kim Ark, 169 U.S. 649, 693 (1898)).

Thus, American Samoa’s leaders at the time the Deeds of Cession were signed were correct to believe that by transferring sovereignty to the United States through the Deeds of Cession they would be recognized as full U.S. citizens. Indeed, at that time there was no such thing as a “non-citizen” U.S. national under federal law.

At no point did American Samoa’s leaders negotiate or ask to be recognized as “nationals” but not “citizens” - they thought they would have a right to be citizens, full stop.

Read more about all this in a legal brief filed by the Samoan Federation of America here or watch Fa’a Samoa, Sovereignty, and Self-Determination in American Samoa: Past and Present in our Building Understanding series.

 

In the early 1900s, the McKinley administration wanted to expand U.S. sovereignty over places like American Samoa, Puerto Rico, and Guam, but it did not want to recognize the people living in those places as U.S. citizens. The reason? Explicit racism towards the people living in those islands.

Breaking from longstanding precedent, the Department of War argued in 1900 that while people in these new territories owed “allegiance” to the United States, they had no right to U.S. citizenship. Motivated by racism, high-ranking U.S. military officials expressed concern that these new territories were “largely peopled by an alien race, ignorant of our laws, customs, and institutions, unable to distinguish the difference between the Constitution of the United States and a map of the country.” 

In 1901, the U.S. Department of Justice argued to the Supreme Court that the Citizenship Clause of the Fourteenth Amendment simply “did not refer to” the people of island territories “who belonged to other races in other climes in the distant islands of the sea, uncivilized tribes in Sulu or Panay [in the Philippines, or], uncivilized tribes in Tutuila [American Samoa].” The United States, it explained, “never intended to make these tropical islands, with their savage and half-civilized … people, a part of the United States in the constitutional sense.” 

The Supreme Court echoed these racist sentiments. Justice Brown, who authored Plessy v. Ferguson (which upheld racial segregation) expressed concerns in Downes v. Bidwell, the most prominent of the Insular Cases, that acquisition of the new territories would mean that “children thereafter born, whether savages or civilized, are . . . entitled to all the rights, privileges and immunities of citizens.” Justice White worried that the acquisition of overseas territory “peopled with an uncivilized race, yet rich in soil, and valuable to the United States” would not be possible if annexation meant “the immediate bestowal of citizenship on those absolutely unfit to receive it.” 

Ultimately, the Supreme Court’s decisions in the Insular Cases avoided a clear answer on whether people born in island territories have a right to U.S. citizenship, in effect leaving the decision to the political branches. Acting on their own - without asking or seeking the views of the people in any territory – the State Department and other federal agencies began labeling people in American Samoa, Puerto Rico, Guam, and the U.S. Virgin Islands as so-called “non-citizen” U.S. nationals. It was not until 1940 that federal statute labeled people in American Samoa and Guam “nationals, but not citizens, of the United States at birth.” The Supreme Court has yet to either approve or reject this classification, leaving the question of citizenship in American Samoa uncertain.

Read more about all this in a legal brief filed by Right to Democracy in Trump v. Barbara on behalf of former elected officials and judges from American Samoa and other U.S. territories, and in this article written by Right to Democracy’s co-director Neil Weare in SCOTUSblog.

 

As discussed more here, “national” status was not something asked for or negotiated by American Samoa’s leaders, and it was never something unique for American Samoa. Rather, labeling people in American Samoa and other territories as “non-citizen” U.S. nationals was a way for the federal government to exercise greater control over these communities, limit their rights, and justify the ongoing denial of self-government.

When the U.S. Navy told American Samoa’s leaders in the 1920s that the federal government did not recognize American Samoans as U.S. citizens, community leaders organized a new political movement known as the Mau, whose slogan was “citizenship and civil government for the Samoans.” They pushed for decades to be recognized as full U.S. citizens, while at the same time advocating for the continued protection of their land or culture – they did not see any conflict between U.S. citizenship and the Fa’a Samoa. 

The efforts of American Samoa’s leaders to be recognized as full U.S. citizens failed because of racist opposition from the Navy and Members of Congress, who called American Samoans “primitive” “savages,” “absolutely unqualified,” and “poor unsophisticated people.”

Read more about all this in a legal brief filed by the Samoan Federation of America here or watch Fa’a Samoa, Sovereignty, and Self-Determination in American Samoa: Past and Present in our Building Understanding series.

When federal officials came to American Samoa in 1930 to investigate the concerns about citizenship and civil government raised by the Mau, the historical record is clear that American Samoa’s leaders were unanimous in their support for recognition of U.S. citizenship.

• Tulele Galeai: “[T]he soil of Tutuila and Manua has been made a part of America but the people of Tutuila and Manua are not American Citizens . . . I therefore pray that the people of Tutuila and Manua may also become citizens of America.”

• Chief Nua: “I desire . . . that the people of American Samoa should be true American citizens; receive American citizenship, to be equal with the true American” (emphasis omitted)

• Napoleon Tuiteleleapaga: “I ask the commission to . . . try your best to give us American citizenship.”

• Chief Fanene: “I pray . . . that we may be made citizens of the United States . . . we wish to become loyal and peaceful citizens of the United States.”

• Chief Matoa: “I wish . . . that the people of Samoa should obtain true American citizenship.”

• Chief Sotoa: “[I]t is requested to . . . make recommendations for the people of American Samoa to become true American citizens.”

• Chris T. Young: “[E]very person in American Samoa . . . earnestly request . . . the people of Samoa to be a true American Citizen.”

• Chief Tauala: “I request the commission to make a recommendation to Congress to take certain acts to have the people of Samoa as true American citizens.”

In fact, the only opposition came from a former U.S. Naval Governor of American Samoa, who testified, “The people are primitive . . . . They become savage only when deeply aroused . . . . They are like grown-up, intelligent children who need kindly guidance . . . the people of American Samoa are, at present, not at all prepared to become citizens of the United States.”

Read more about all this in a legal brief filed by the Samoan Federation of America here or watch Fa’a Samoa, Sovereignty, and Self-Determination in American Samoa: Past and Present in our Building Understanding series.

 

The American Samoan chiefs who signed the Deeds of Cession did not see a conflict between U.S. citizenship and the preservation of their land and culture. They were right about not having this concern. 

Recent opposition to legal recognition of U.S. citizenship by some officials in American Samoa repeats unsupported arguments made by the U.S. Navy in the 1940s that U.S. citizenship would risk threatening local laws and practices protecting Fa’a Samoa. Recognition of citizenship is unrelated to questions about the constitutionality of these laws and practices.

The example of the Northern Mariana Islands makes this clear. People born in the Northern Mariana Islands are automatically recognized as U.S. citizens. Yet, federal courts have upheld their ability to restrict the sale of land to those of “Northern Mariana Descent.” Thus, someone without any ancestral ties to the Northern Marianas who moves there is unable to buy land, just as someone without any ancestral ties to American Samoa who moves there is unable to buy land.

Some point to Hawaii, Puerto Rico, or Guam as examples where the United States and others have taken control over significant tracts of land. But the federal government took much of that land before people in those territories were recognized as citizens and were still labeled “non-citizen” U.S. nationals. Further, the basis for U.S. land takings today is not U.S. citizenship but U.S. sovereignty. The federal government’s view is they have broad powers to take land, whether or not people in a U.S. territory are recognized as citizens or nationals. Recognizing people as full U.S. citizens rather than “non-citizen” U.S. nationals would not expand the power of the federal government or others over land in American Samoa.

Ultimately, the continued denial of citizenship in American Samoa does nothing to protect its land or culture, while exposing American Samoans to potential criminal prosecution in Alaska and other states. American Samoans living in the States are also denied job opportunities, certain state and federal benefits, and are often treated worse than even foreign nationals who are green card holders. 

Read more about all this in a legal brief filed by the Samoan Federation of America here or watch Fa’a Samoa, Sovereignty, and Self-Determination in American Samoa: Past and Present in our Building Understanding series.

Over the last decade, the American Samoan government intervened to oppose judicial recognition of a constitutional right to U.S. citizenship. Their court filings agreed with the U.S. Department of Justice that the question of citizenship in American Samoa is left to Congress. The Fono has passed a resolution supporting that same view. 

The concerns expressed by these officials in American Samoa are grounded in the fear that citizenship would affect American Samoa’s land preservation laws, matai system, and other cultural practices. They mistakenly believe that if citizenship is recognized these laws and practices would no longer be constitutional. Yet over the course of more than a decade and dozens of court filings, these American Samoan officials have yet to explain exactly how recognition of citizenship would actually threaten American Samoa’s laws or cultural practices, other than appealing to fear. They have also not explained how “non-citizen” U.S. national serves to protect American Samoa’s land and culture. 

Just as U.S. citizenship does not pose a threat to the preservation of land and culture in American Samoa, neither does “non-citizen” national status serve as a shield to protect American Samoa from unilateral federal action, as demonstrated by the recent imposition of deep sea mining over the objections of American Samoa’s leaders. 

This opposition to a right to citizenship also ignores the understanding American Samoa’s leaders had when they signed the Deeds of Cession that they would be recognized as citizens. It also disregards decades of effective advocacy by American Samoa’s leaders, including the Fono, for Congress to recognize American Samoans as full U.S. citizens. They have yet to address why they disagree with decades of consensus among American Samoa’s leaders from 1900-1960.

The consequences of this opposition are now being seen as American Samoans in Alaska and other states risk criminal prosecution as a result of being labeled “non-citizen” U.S. nationals. This status also limits job opportunities, including in the U.S. military. 

Right to Democracy and the American Samoans we represent agree with American Samoa’s officials on the importance of protecting American Samoa’s land and culture. The only disagreements are whether a constitutional right to citizenship threatens any of that, and whether American Samoa’s leaders who signed the Deeds of Cession were correct that by transferring sovereignty to the United States they would have a right to U.S. citizenship. 

Legal scholars agree that the constitutional question of citizenship in American Samoa is not connected to legal questions about the protection of land, culture, or self-determination in American Samoa.

• Craig R. Shagin and Delaram Rezaeikhonakdar, The American Samoan Oxymoron: The Noncitizen National And The Meaning Of Citizenship, 53 UC LAW SF CONST. Q. 559 (2026): “[R]ecognizing American Samoans as citizens, similar to residents of other unincorporated territories, would seemingly have no adverse impact [on the preservation of land or culture]. … While protecting indigenous culture is important, U.S. citizenship need not threaten it. Citizenship can coexist with the territories’ heritage and their ability to determine their political future.”

• Amy McMeeking, Citizenship, Self-Determination, and Cultural Preservation in American Samoa, 70 UCLA L. Rev. 840 (2023): “[T]here is no clear relationship between the outcome of Citizenship Clause litigation and the protection or erosion of traditional practices in American Samoa. An extension of U.S. citizenship to American Samoans would not necessarily be harmful to fa`a Sāmoa. Conversely, maintaining the status quo is no guarantee that courts will uphold American Samoa’s current laws and policies if legal challenges arise.”

• Cassandra Burke Robertson & Irina D. Manta, Integral Citizenship, 100 Tex. L. Rev. 1325, 1368 (2022): “When courts directly faced constitutional challenges to practices rooted in territorial culture, judges did not hesitate to strike down those practices without relying on citizenship status.”

• Guy C. Charlton & Tim Fadgen, Case Note: Fitisemanu v. United States: U.S. Citizenship in American Sāmoa and the Insular Cases, 39 UCLA Pac. Basin L.J. 25, 41, 45 (2022): “Given the plenary authority of Congress and the Executive over the territory which enables Federal Government [to] alter the constitutional structure and rights of the population of American Sāmoa as it deems fit, it is arguable that a grant of citizenship is likely more important to the ‘dignity’ and ‘autonomy’ of individuals in the territory than local autonomy subject to Congressional oversight. The precariousness of American Sāmoan rights under the Plenary Power doctrine, rather than exhibiting self-determination and dignity, seemingly reinforces the ‘subject’ status of American Sāmoans as colonized peoples.”

 

The legal argument that people born in American Samoa have a right to be recognized as U.S. citizens based on the Citizenship Clause of the Fourteenth Amendment is separate and distinct from legal issues relating to the constitutionality of American Samoa’s communal land and title systems.

 In a 1980 decision, Craddick v. Territorial Registrar, federal judges sitting by designation on the High Court of American Samoa held that American Samoa’s land laws survived constitutional scrutiny based on “a compelling state interest in preserving the lands of American Samoa for Samoans and in preserving the Fa’a Samoa, or Samoan culture.” 1 Am Samoa 2d 11, 12 (1980), available here. Nowhere in the Court’s analysis did the issue of citizenship or non-citizen national status come into consideration. 

 Federal courts have upheld similar laws in the U.S. territory of the Northern Mariana Islands, where people are recognized as U.S. citizens at birth.

 To the extent there are any unresolved questions about the constitutionality of land ownership restrictions in U.S. territories, these questions are separate from whether people born in American Samoa have a constitutional right to U.S. citizenship. Defending these laws on the basis that they serve as a compelling interest, as the High Court did in Craddick, is a better approach than doing so on the basis that American Samoans are not recognized as full U.S. citizens, which no court has ever relied on to defend laws protecting land and culture in American Samoa or other U.S. territories. 

 

The United States recognizes American Samoa, as it does other U.S. territories, as a “non-self-governing” territory that has a right to self-determination under international law. This right is not dependent on whether people in American Samoa are recognized as U.S. citizens or not. After all, people born in other U.S. territories are automatically recognized as U.S. citizens yet the United States still recognizes their right to self-determination. In fact, the federal government’s denial of citizenship to people born in American Samoa could itself be a violation of international law, since it makes them citizens of nowhere. 

 The legal question presented as a defense to Alaska’s criminal prosecution of American Samoans in Whittier is narrow: whether, so long as American Samoa is a U.S. territory, can Congress or the State Department label American Samoa as not “in the United States” for purposes of the constitutional right to birthright citizenship? This legal defense does not address, nor will it answer, any questions about American Samoa’s future political status -- that is a question that only the people of American Samoa can answer. 

American Samoa has been a part of the United States for over 125 years, something American Samoans celebrate each year during Flag Day. Unless the American Samoan people decide to end their political relationship with the United States - so that American Samoa is no longer “in the United States” – the question of citizenship is determined by the U.S. Constitution and the fact that the U.S. exercises sovereignty over the territories. The question of future political status remains up to the people of American Samoa, as it does in other U.S. territories whose residents are already recognized as U.S. citizens.

Right to Democracy and the American Samoans we represent fully support the right of American Samoans to determine their future political relationship with the United States through a process of self-determination.

 

Our north star at Right to Democracy is that we do not think the federal government should have the power to unilaterally act in U.S. territories regardless of what people in those territories might think or want. 

The legal position the federal government has repeatedly emphasized in recent cases is that Congress has the power to unilaterally recognize or deny U.S. citizenship to people born in U.S. territories regardless what people in those territories might want. Indeed, after the U.S. attorney arguing Tuaua suggested to the D.C. Circuit during oral argument that the views of American Samoa officials could impact the power of the federal government, the U.S. Department of Justice sent a letter to the court clarifying its view that Congress has the power to unilaterally recognize or deny citizenship in American Samoa whatever the position of the American Samoan Government. So the legal question in these court cases is ultimately about the scope of federal power, not local self-determination. 

Thus, when territorial officials in American Samoa or any territory embrace the view that the federal government should have unilateral power to act regardless of what people in that territory may want - as American Samoan officials did in Tuaua and Fitisemanu – we must respectfully disagree. We don’t think the federal government should have that power, especially when the Fourteenth Amendment was specifically enacted to prohibit the federal government from denying citizenship to people born on U.S. soil. 

American Samoan officials also recently embraced unilateral rule by the federal government when they supported H.R. 6062, passed into federal law in 2024, which granted the Secretary of Interior the unilateral power to amend the Constitution of American Samoa. You read that correctly, right now the Secretary of the Interior has complete authority to amend or revoke the Constitution of American Samoa as he or she sees fit.  Officials in American Samoa supported this law in the name of “self-determination.” But the law does not require the Secretary of Interior to follow the wishes of the people of American Samoa. A law that places the power of American Samoa’s constitution in the hands of a single, all-powerful federal official rather than the people of American Samoa is not “self-determination.”

Right to Democracy and the American Samoans we represent continue to support the right of American Samoans to determine their future political relationship with the United States through a process of self-determination. But that does not mean supporting the power of Congress or the Secretary of the Interior to unilaterally decide questions as important as U.S. citizenship or American Samoa’s constitution.

 

Yes, based on its text, history, and relevant Supreme Court precedent, although the Supreme Court has yet to definitively answer the question.

The Citizenship Clause of the Fourteenth Amendment to the U.S. Constitution provides that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” If a person is (1) born “in the United States” and (2) “subject to the jurisdiction” of the United States, then neither Congress nor the State Department has any power to deny that person recognition as a U.S. citizen.

 American Samoa has been a territory of the United States for 125 years – fully half the history of the United States itself. The United States has by treaty and statute confirmed the sovereignty of the United States over American Samoa. This followed Deeds of Cession in 1900 and 1904 whereby the traditional chiefs of these islands transferred sovereignty to the United States based on the understanding that they would be recognized as citizens and their land and culture protected. American Samoa is not part of any nation except the United States. 

On April 17, 2025, President Donald Trump commemorated the 125th anniversary of Flag Day in American Samoa in a video address to the people of American Samoa, declaring that “your beautiful Islands are a beloved part of the United States.” He explained: “The Chiefs who first chose to raise the Stars and Stripes over Samoa gave their descendants the greatest gift of all, the gift of being part of the Greatest Country in the History of the World.” The U.S. Department of Interior also announced: “Today we celebrate 125 years since American Samoa became part of the United States. For over a century, the stars and stripes have flown proudly over the Islands—a symbol of our shared history, heritage, and resilience.” 

American Samoa Governor Pulaali’i Nikolao Pula explained that “[Flag Day] is a sacred recognition of the covenant forged between our forebears and the United States in 1900,” emphasizing that “there is no American Samoa without the United States and there is no United States without American Samoa. We each bring something absolutely wonderful to each other.”

A person born in American Samoa is therefore “born … in the United States” for purposes of the Citizenship Clause. Moreover, because someone born in American Samoa “owes permanent allegiance to the United States,” a person born in American Samoa is also born “subject to the jurisdiction of the United States.” Accordingly, the Fourteenth Amendment provides that someone born in American Samoa, just like someone born anywhere else on U.S. soil, cannot be denied citizenship by the federal government.

More information can be found in Section III.A.1 of Michael Pese’s Motion to Dismiss and also this legal brief filed by prominent citizenship scholars from across the ideological spectrum.

 

Those who drafted the Citizenship Clause were clear that it would apply in States and Territories alike. Senator Lyman Trumbull, Chairman of the Senate Judiciary Committee during the time the Citizenship Clause was being debated in Congress, explained that the Citizenship Clause “refers to persons everywhere, whether in the States or in the Territories or in the District of Columbia.” During debates over a similar citizenship provision in the 1866 Civil Rights Act, House Judiciary Committee Chairman James F. Wilson expressed the understanding that “Every person born within the United States, its Territories, or districts . . . is a natural-born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity.”

 It makes sense that the phrase “in the United States” was understood to ensure both States and Territories alike would be included within the geographic scope of the Citizenship Clause. After all, long prior to the ratification of the Fourteenth Amendment Chief Justice John Marshall declared that “the United States” was “the name given to our great republic, which is composed of states and territories.”

More information can be found in Section III.A.2 of Michael Pese’s Motion to Dismiss and also this legal brief filed by prominent citizenship scholars from across the ideological spectrum. 

 

Five years after the Fourteenth Amendment was ratified, the Supreme Court confirmed that the Citizenship Clause “put[] at rest” the proposition that “[t]hose who had been born and resided always in the District of Columbia or in theTerritories, though within the

United States, were not citizens.” Just two years before American Samoa became a territory of the United States, the Supreme Court reaffirmed in its seminal decision in United States v. Wong Kim Ark that the Citizenship Clause codified the “ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country.” At no time in any case addressing the Citizenship Clause has the Supreme Court suggested it does not apply in States and Territories alike.

 More information can be found in Section III.B of Michael Pese’s Motion to Dismiss and also this legal brief filed by prominent citizenship scholars from across the ideological spectrum.

 

Recognizing that the Citizenship Clause applies in States and Territories alike is consistent with its purpose and the historical context in which it was ratified. The Citizenship Clause was adopted to constitutionalize the well-settled common-law principle of jus soli, or “the right of the soil,” that extended birthright citizenship “within the dominion” of the sovereign, long understood in England and the United States to include territories. The only time the Supreme Court did not follow the jus soli rule was its infamous ruling in Dred Scott v. Sandford. Significantly, the Citizenship Clause was adopted to “overturn the Dred Scott decision.” 

The Fourteenth Amendment’s Framers sought “‘to put th[e] question of citizenship and the rights of citizens . . . beyond the legislative power’” and to restore and cement the settled jus soli rule. In short, “[t]he Fourteenth Amendment … has conferred no authority upon Congress to restrict the effect of birth, declared by the Constitution to constitute a sufficient and complete right to citizenship.”

More information can be found in Section III.A.3 of Michael Pese’s Motion to Dismiss and also this legal brief filed by prominent citizenship scholars from across the ideological spectrum.

 

Prominent legal scholars across the ideological spectrum agree that people born in American Samoa and other U.S. territories have a constitutional right to U.S. citizenship. Professor Michael Ramsey explained in a recent law review article that “the original meaning [of the Fourteenth Amendment] would apply the Citizenship Clause to persons born in Puerto Rico, Guam, American Samoa, and the U.S. Virgin Islands—all of which are under permanent U.S. sovereignty pursuant to formal acquisitions and thus are ‘in the United States.’” 

A cross-ideological group of distinguished academics joined Professor Ramsey to argue in a legal brief filed before the U.S. Supreme Court that “the ‘non-citizen national’ designation imposed on American Samoans . . . is an unconstitutional exception to the principle of jus soli citizenship, invented by administrators and legislators operating under racist presuppositions during America’s territorial expansion at the turn of the twentieth century.”

 

Federal judges who have considered the question of citizenship in American Samoa have reached differing conclusions, with some relying on the Supreme Court’s racist Insular Cases to reinterpret the intended geographic scope of the Citizenship Clause. 

In 2019, U.S. District Court Judge Clark Waddoups properly relied on the Supreme Court’s binding precedent in Wong Kim Ark to hold in Fitisemanu v. United States that American Samoans, “having been born in the United States, and owing allegiance to the United States, are citizens by virtue of the Citizenship Clause of the Fourteenth Amendment,” and that “Congress has no authority to deny them citizenship.”

That decision was reversed by a divided panel of the Tenth Circuit. Rather than rely on the text and history of the Citizenship Clause, the two judges in the panel majority relied instead on the Supreme Court’s controversial and racist decisions in the Insular Cases – none of which actually addressed or interpreted the Citizenship Clause. The dissenting judge disagreed that the Insular Cases should be extended in this way and would have upheld the district court decision on the grounds that “[w]hen the Fourteenth Amendment was ratified, courts, dictionaries, maps, and censuses uniformly regarded territories as land ‘in the United States.’” A cross-ideological group of prominent legal scholars agreed the Insular Cases “do not provide guidance on whether the Citizenship Clause applies to individuals born in the unincorporated territories.”

In 2022, Supreme Court Justice Neil Gorsuch criticized the continued reliance on the Insular Cases in Fitisemanu and Tuaua v. United States, an earlier case reaching the same result. In his view: “The Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law.” He and Justice Sonia Sotomayor agreed that “the Constitution’s application [in U.S. territories] should never depend on the government’s concession or the misguided framework of the Insular Cases.” She further observed that the Insular Cases “were premised on beliefs both odious and wrong.” These statements by Justices Gorsuch and Sotomayor followed action by the Supreme Court in 2020 when it emphasized “that the Insular Cases should not be further extended.” Nonetheless, the Supreme Court did not grant review in Fitisemanu, leaving the question of citizenship for people born in American Samoa unresolved.

In 2024, following pressure from leaders in U.S. territories, including Congresswoman Amata, and others, the U.S. Justice Department issued a formal policy stating that “the racist language and logic of the Insular Cases deserve no place in our law.”