Citizenship and American Samoa

Many posts have discussed the legal status of citizenship.

Michael Levenson at NYT:

Since 1900, American Samoans have pledged allegiance to the United States and followed its laws. Yet they have not been automatically granted citizenship at birth, which left many unable to vote and ineligible for certain government jobs.

On Thursday, a federal judge ruled that American Samoans should be granted United States citizenship and ordered the government to issue them passports reflecting that status. The judge, Clark Waddoups of United States District Court in Utah, cited the 14th Amendment, which guarantees citizenship to any child born in the United States.

The decision reignited a century-long debate about the citizenship status of people born in the territories of the United States. But it is likely just one shot in a continuing legal battle. On Friday, Judge Waddoups stayed his ruling until the case is resolved on appeal.

Practically speaking, that means American Samoans will not be able to register to vote or be granted passports reflecting their status as citizens until a higher court weighs in, said Neil C. Weare, the president and founder of the Equally American Legal Defense and Education Fund, which filed the lawsuit for American Samoans seeking citizenship.

 American Samoa, about 2,500 miles southwest of Hawaii in the South Pacific, is the only territory of the United States whose residents are not automatically granted citizenship at birth. The other territories, including Puerto Rico, Guam and the U.S. Virgin Islands, have been granted citizenship by acts of Congress. But American Samoans are classified as “noncitizen nationals” and their passports carry a disclaimer: “The bearer is a United States national and not a United States citizen.”

Seeking and Renouncing Citizenship

Some American Samoans have gone to court to seek citizenship.  At CNN, Danny Cevallos explains:

The Citizenship Clause provides that "[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

American Samoa is certainly "subject to the jurisdiction" of the United States. But residents must also be born "in the United States" for the constitutional right to attach. Unfortunately, for 14th Amendment citizenship purposes, the Territories have never been considered "in the United States."

No federal court has ever recognized birthright citizenship as a guarantee in unincorporated Territories. In fact, federal courts have held on many occasions that unincorporated Territories are not included within the "United States" for purposes of the Citizenship Clause. Because these residents have no Constitutional, automatic right to citizenship, Congress can pick and choose how they become citizens. In fact, it has done just that: granting citizenship at birth to residents of other Territories.

For example, residents of Puerto Rico and the U.S. Virgin Islands are citizens if born there. But that citizenship does not flow from any constitutional right. Rather, Congress has chosen to pass independent legislation giving those residents citizenship.

Indeed, Justice Ruth Bader Ginsburg of the Supreme Court observed in one opinion that the only remaining noncitizen nationals are residents of American Samoa and Swains Island. When it comes to citizenship in the Territories, Congress can giveth or it can choose not to giveth, and the Constitution gives those residents no recourse.

At NPR, Ari Shapiro writes of the unanticipated consequences of the  Foreign Accounts Tax Compliance Act.

Most countries in the world don't tax their citizens living abroad. So, for example, a Spaniard living in Canada won't pay Spanish taxes. Instead, he'll pay Canadian taxes. But the U.S. taxes American citizens wherever they are in the world.

"If I can compare it to romance, I say the U.S. is like Fatal Attraction," says Suzanne Reisman, a lawyer in London who advises Americans abroad. "Once they've got you, they never let you go. You have to renounce your citizenship, or you have to die."

So today, Americans who don't like the Fatal Attraction relationship are giving up their U.S. citizenship in record numbers.

In Switzerland, so many people want to renounce their citizenship that the U.S. Embassy actually has a waiting list.

"I want to be clear: It's not about a dollar value of taxes that I don't want to pay," says Brian Dublin, a businessman who lives near Zurich. "It's about the headache associated with the regulations, filing in the U.S., and then having financial institutions in the rest of the world turn me away."

Dublin says he is ready to renounce, despite the ties he feels to the country of his birth. "I grew up in America. I love my country. But I just feel that the current regulations are onerous."
Officials from the Treasury Department, the State Department, the IRS and Congress spoke on background for this story. None would talk on tape.

They all generally agree on the facts of the situation. Even so, there is very little pressure to change it. As one Senate staffer pointed out, nobody in Congress represents overseas Americans. And government officials think this law is succeeding at catching the tax cheats. That may be worth the side effect of losing a few thousand American citizens every year.

American Samoa and Citizenship

As the Wall Street Journal reports, everyone born in a US territory is automatically a US citizen -- except for those born in American Samoa.

Everyone born in a U.S. state or territory automatically gets U.S. citizenship—unless one happens to be born in American Samoa.

That exception is at the heart of a federal lawsuit filed against the U.S. government this week by five American Samoans and a Samoan organization based in California.
...
Over the past century, Congress has passed a host of laws regarding citizenship and the five U.S. territories, which are subject to only parts of the U.S. Constitution and a patchwork of U.S. laws.

A 1917 statute, for instance, granted automatic American citizenship to people born in Puerto Rico, which became a territory in 1898. Similar laws later granted citizenship to people born in Guam and the Northern Mariana Islands in the Pacific Ocean, and the U.S. Virgin Islands in the Caribbean Sea. But people born in American Samoa are classified as "noncitizen nationals," under a federal law first passed in 1940.

At that time, some in Congress were wary of granting full citizenship to those born in American Samoa, according to Rose Cuison Villazor, a law professor at the University of California, Davis, who is an expert on U.S. territorial law.

More recently, though, leaders in American Samoa have rebuffed efforts to extend American citizenship, partly out of fear it would lead the U.S. to challenge the territory's unique communal land-ownership rules.
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In the suit, filed in federal court in Washington, D.C, plaintiffs claim that a law explicitly denying American Samoans citizenship upon birth violates the Citizenship Clause of the 14th Amendment to the Constitution. That clause states that "all persons born…in the United States, and subject to the jurisdiction thereof, are citizens of the United States."

Several of the plaintiffs served in the U.S. military, according to the complaint.

"We fight America's wars, we have men and women in the line of duty," Leneuoti Tuaua, one of the plaintiffs, said in an interview. "Yet, the U.S. government doesn't seem to care about that."

See this document from the State Department's Foreign Affairs Manual, starting at page 21.