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.”