Tuaua v. United States, Frequently Asked Questions
What is Tuaua v. United States about?
Eight people born in the U.S. territory of American Samoa (including lead plaintiff
Leneuoti Tuaua) and the non-profit organization Samoan Federation of America have
filed a lawsuit in federal court challenging federal laws and policies that deny U.S.
citizenship to people born in American Samoa. The American flag has now flown over
American Samoa for 112 years, yet the federal government still does not recognize
people born in American Samoa as citizens—even though American Samoans have
become a vital part of the United States, not least by fighting to defend the American flag
through their service in the U.S. Armed Forces. The argument in this case is simple: the
Citizenship Clause of the U.S. Constitution provides that “All persons born . . . in the
United States, and subject to the jurisdiction thereof, are citizens of the United States.”
Federal laws and policies that deny citizenship to people born in American Samoa violate
this Clause. You can view the Complaint in Tuaua v. United States here.
Why is citizenship important?
Citizenship would mean that American Samoans would be able to enjoy the same rights
and privileges as all other Americans, no matter where they choose to live or visit.
People born in American Samoa who are classified by the federal government as socalled “non-citizen nationals” are treated differently than other Americans who are
recognized as citizens. For example, when traveling to independent Samoa, “non-citizen
nationals” must purchase a special visitor’s permit not required of visiting U.S. citizens.
In addition, they face greater difficulties when sponsoring foreign national family
members to immigrate to or visit the mainland United States, are ineligible for certain
jobs at the state and federal level, and are denied the right to vote if they live stateside.
This unequal treatment is especially unfair to children growing up in American Samoa,
who should have the same world of opportunities available to them as all other children
born within the United States. If this case is successful, American Samoans would no
longer have to go through the burdensome and expensive naturalization process to be
recognized as U.S. citizens.
What does current federal law require for people born in American Samoa
to be recognized as citizens?
In violation of the Constitution, current federal statutes and agency policies do not
recognize people born in American Samoa as U.S. citizens and do not give them any
right to be a citizen (unless one of their parents was a U.S. citizen). Instead, they are put
in a second-class status known as the “non-citizen national.” In order to be recognized as
citizens, people born in American Samoa are generally treated like immigrants and must
go through the same naturalization process and follow most of the same naturalization
requirements applicable to foreign nationals.
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To apply for naturalization, a “non-citizen national” must pay nearly $700 in
administrative fees alone, take an English language and Civics exam, and submit to a
background investigation into his or her “moral character,” which includes being
fingerprinted and subjected to an in-person interview. The entire process can take a year
or more, with the ultimate decision made on a case-by-case basis by an officer of the U.S.
Citizenship and Immigration Services, with no guarantee of success. And before those
living in American Samoa can even start the application process, they must first relocate
stateside, which can cost thousands of dollars more and cause a significant disruption in a
person’s work and personal life. In addition, all of the current naturalization
requirements could change at any time, including the fees. The federal government could
even make naturalization impossible for American Samoans—just like it did before 1952,
when non-citizen nationals born in American Samoa were not eligible to naturalize at all,
even if they were residing on the mainland.
What is the specific legal argument being made in this case?
This case is based on the Citizenship Clause of the 14th Amendment of the United States
Constitution, which commands that “All persons born . . . in the United States, and
subject to the jurisdiction thereof, are citizens of the United States.” Mr. Tuaua and the
other plaintiffs argue that the Citizenship Clause guarantees U.S. citizenship to all people
born in the United States, including people born in the U.S. territory of American Samoa.
History shows why the Constitution includes a rule for U.S. citizenship by birth in the
United States. The Citizenship Clause was ratified shortly after the Civil War, and it was
written against a backdrop of prejudice against newly freed slaves and growing
immigrant communities. As the U.S. Supreme Court has recognized, the purpose of the
Clause was to take the power away from Congress or any state or territory to use the
political process to deny the birthright citizenship of people born in the United States.
The Citizenship Clause was intended to overturn the Supreme Court’s infamous pre-Civil
War decision in Dred Scott v. Sanford, which allowed the government to deny citizenship
to people of certain races who were considered inferior. By overturning Dred Scott, the
Citizenship Clause enshrined within the Constitution the automatic guarantee that
everyone born in the United States would be a U.S. citizen.
The people who wrote and adopted the Citizenship Clause understood that it would
extend not just to people born in one of the states, but also to people born in U.S.
territories. Thus, it is the Constitution, not Congress, that answers the question of
citizenship for people born in the United States, including in American Samoa.
What will be the result if this legal challenge is successful?
American Samoa is the only U.S. territory whose inhabitants are labeled “non-citizen
nationals.” The goal of this legal challenge is to obtain a definitive ruling that persons
born in American Samoa are citizens at birth by virtue of the Citizenship Clause, and that
current federal laws and policies denying the birthright citizenship of people born in
American Samoa are unconstitutional. This would mean that people born in American
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Samoa would automatically be recognized as U.S. citizens without having to go through
the burdensome and expensive naturalization process.
Who are the plaintiffs in this case?
The plaintiffs include people born in American Samoa who believe they have an
individual constitutional right to be recognized as citizens without having to go through
the burdensome and costly naturalization process. Six of the eight individual plaintiffs
currently reside in American Samoa, one in Hawaii, and one in the state of Washington.
* Leneuoti Tuaua is a retired public safety officer and a former Marshal for the
High Court of American Samoa. He was born in American Samoa, where he
currently lives with his family. Mr. Tuaua attended college in California and
resided there during the late 1960s and early 1970s. While he was living in
California, he was permitted to register for the military draft during the Vietnam
War period, but as a “non-citizen national” he was denied the right to vote and the
opportunity to serve as a police officer in the state. Mr. Tuaua wants his children
to be recognized as citizens and have opportunities that were denied to him. Mr.
Tuaua holds the High Chief title Leilua from his family in Sagone, Savai'i, and
the Talking Chief title, Lanu, in Fitiuta, Manu'a.
* Fanuatanu Mamea is a decorated Vietnam War veteran who served in the
U.S. Army from 1964 until he was honorably discharged in 1984. Early in his
military career, Mr. Mamea was denied the opportunity to serve in the Special
Forces because of his status as a “non-citizen national.” In later years when
stationed on the U.S. mainland, he was denied the right to vote in state and federal
elections. Mr. Mamea now lives with his family in Tafuna, American Samoa, but
at times needs to travel to Hawaii to receive treatment for his combat injuries at a
veterans’ hospital. U.S. immigration law makes it more difficult for him to
sponsor his wife to join him on these medical visits than it would be if he were
recognized as a citizen. Mr. Mamea has brought this lawsuit on behalf of himself
and his three young children, in the hope that they can grow up having all of the
rights and opportunities of children born anywhere else in the United States.
* Emy Afalava is also a long-serving, decorated veteran of the U.S. Army who
currently lives with his family in Tafuna, American Samoa. During the course of
his 15-year military career, Mr. Afalava was deployed as part of Operations
Desert Shield and Desert Storm, including service in the infantry during the
Liberation of Kuwait. Both during and after his military career, when Mr.
Afalava lived in the continental United States, he was denied recognition as a U.S.
citizen and consequently denied the rights of a citizen, including the right to vote
in federal and state elections.
* Va’alea ma Fosi was born in American Samoa and currently lives with
his family in Honolulu, Hawaii. He served for more than a decade in the U.S.
Army Reserves and the Hawaii Army National Guard. While in college in
Hawaii, Mr.
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Fosi learned that as a “non-citizen national,” he was ineligible for federal work
study programs and certain other federal employment opportunities. His “noncitizen national” status currently prevents him from enjoying rights available to
other people born in the United States and living in Hawaii, including the right to
vote and the right to bear arms.
* Taffy-lei Maene was born in American Samoa and currently lives in Seattle,
Washington. Because the U.S. Government refuses to recognize Ms. Maene as a
citizen, she lost her job at the Washington State Department of Licensing,
depriving her of income and health insurance.
The U.S. Government’s
classification of Ms. Maene as a “non-citizen national” has also deterred her from
applying for other jobs requiring proof of citizenship, denied her the right to vote
in Washington, deprived her of the ability to sponsor her mother’s application for
an immigration visa, and prevented her from obtaining an enhanced Washington
State driver’s license.
* The Samoan Federation of America is a non-profit organization established
in 1965 in Carson, California to advocate on behalf of Samoan communities in the
continental United States. The Samoan Federation is particularly knowledgeable
about the burdens imposed by “non-citizen national” status upon American
Samoans living on the mainland. The Samoan Federation is directed by its
President, Loa Pele Faletogo.
Who are the attorneys involved in this case?
The plaintiffs are represented by American Samoa attorney Charles V. Ala’ilima,
attorneys with the Constitutional Accountability Center, a non-profit organization based
in Washington, D.C., and Arnold & Porter LLP, an international law firm.
Who is the case against?
The defendants in this case are the United States government, the U.S. Department of
State, and related agency officials. These governmental entities are responsible for
implementing federal laws and policies that deny the birthright citizenship of people born
in American Samoa, including by providing a U.S. passport that explicitly states that such
people are not U.S. citizens.
Where has the case been filed?
The case has been filed in the U.S. District Court for the District of Columbia, which has
previously heard important cases relating to American Samoa. The case has been
assigned to the Honorable Richard J. Leon.
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What is the relationship between citizenship and issues relating to land
and culture in American Samoa?
The legal argument that the U.S. Constitution prohibits the federal government from
denying the birthright citizenship of people born in American Samoa 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
Even if 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
America Samoa are recognized as citizens.
I’ve heard that constitutional provisions like the Equal Protection
Clause and the Due Process Clause don’t apply in American Samoa,
and that is what allows for American Samoa’s land laws. Is that true?
No. The High Court of American Samoa has long recognized that “the constitutional
guarantees of due process and equal protection are fundamental rights which do apply in
the Territory of American Samoa.”2 Nonetheless, in Craddick v. Territorial Registrar,
the High Court held that American Samoa’s communal land laws did not violate these
constitutional protections, because of the “compelling historical and continuing interest in
preserving the land and culture of the Samoan people.”3
I’ve heard that the traditional leaders of American Samoa have
always been against U. S. citizenship. Is that correct?
No. On April 17, 1900, when the American flag was raised over Pago Pago harbor,
American Samoa’s traditional leaders believed they had become American citizens. And
throughout the 1920s, 1930s, and 1940s, American Samoa’s traditional leaders repeatedly
petitioned Congress for full U.S. citizenship. Indeed, but for opposition from the U.S.
Navy at the time, it is likely that the issue of citizenship would have been resolved long
ago. During the 1930s, the U.S. Senate voted unanimously on two separate occasions to
recognize American Samoans as citizens while continuing to preserve American Samoa’s
land and title systems, only to see the legislation fail in the House due to Navy
opposition.
To view some historical resources relating to support for citizenship in American Samoa,
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1 Am Samoa 2d 11, 12 (1980), available here.
1 Am Samoa 2d at 12.
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Id. at 14.
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click here.
What is the relationship between citizenship and American Samoa ’s
future political status? Why shouldn’t the issue of citizenship be put
up for a vote?
This case asks one simple question: so long as American Samoa is part of the United
States, do people born in American Samoa have an individual right under the U.S.
Constitution to be recognized as citizens? The Citizenship Clause of the U.S.
Constitution provides a clear and definitive answer to this question, and one that is not
subject to a vote: “All persons born . . . in the United States, and subject to the
jurisdiction thereof, are citizens of the United States.” This case does not, however,
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.
A court ruling that Congress cannot deny the birthright citizenship of people born in
American Samoa will not change the fact that the future of American Samoa’s political
status remains in the hands of the American Samoan people. The islands of American
Samoa have been a part of the United States since American Samoa’s traditional leaders
gave it by Deeds of Cession more than a century ago. Unless and until the American
Samoan people decide to change their political status, the question of citizenship is
determined by the United States Constitution.
Why not address the issue of citizenship through Congress rather than
through the courts?
The purpose of the Citizenship Clause was to remove questions about birthright
citizenship from the political process. That way, the Constitution would answer those
questions once and for all, instead of letting the issue be subject to legislation by
Congress, the states, or the territories. Of course, Congress can recognize American
Samoans as U.S. citizens by statute, just as it has done for people born in every other U.S.
territory. But individual rights are guaranteed by the Constitution regardless of whether
Congress wants to recognize those rights. Until courts recognize that citizenship in
American Samoa is based on the Constitution, the individual rights and privileges of
people born in American Samoa will continue to be subject to potential political
interference.
I’ve heard that recognizing citizenship for people born in American
Samoa will expand the federal government’ s powers in American
Samoa , is this true?
The Territorial Clause of the Constitution already empowers Congress “to dispose of and
make all needful Rules and Regulations respecting the Territory or other Property
belonging to the United States.” As a result, Congress has always had broad authority to
legislate with respect to American Samoa, in areas including immigration, taxation, and
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many more. This case seeks to limit Congress’s power over individuals born in the
United States by asking the federal courts to recognize that a separate constitutional
provision, the Citizenship Clause, takes away Congress’s power to deny citizenship to
people born in American Samoa.
Does this case have anything to do with allowing people living in American
Samoa to vote for President or have voting representation in Congress?
No. This case is only about citizenship for people born in American Samoa. Federal
representation for people living in American Samoa is a separate question that this case
does not address.
American Samoa, like other U.S. territories, has limited federal
representation because the U.S. Constitution only provides Presidential Electors to states
and the District of Columbia, and voting representation in Congress has not been
extended beyond the states.
If the case is successful, people born in American Samoa who already live in or who
move to another part of the United States would be permitted to vote in state and federal
elections there. Currently, every state denies the right to vote to people who are
classified as “non-citizen nationals.”
What will happen to the status of “ non-citizen national” if the case is
successful?
Before the early 1900s, all U.S. citizens were considered U.S. nationals, and all U.S.
nationals were considered U.S. citizens. The only lines that were ever drawn were
between U.S. citizens/nationals on the one hand, and “aliens” (i.e., foreign nationals) on
the other.
Around 1900, as the federal government began to acquire many overseas territories, the
status of “non-citizen national” was invented out of political convenience. It was used to
justify the government’s efforts to exercise power over the inhabitants of these new
territories without having to give them the rights and privileges associated with
citizenship.
Over time, Congress has eliminated the status of “non-citizen national” in every U.S.
territory except American Samoa. Congress recognized citizenship in Puerto Rico in
1917, the U.S. Virgin Islands in 1927, Guam in 1950, and the Northern Mariana Islands
in 1986.
If this lawsuit is successful, citizenship and nationality would once again be treated as
interchangeable and undividable, and the status of “non-citizen national” would be
relegated to the dustbin of history, where it belongs. The individual rights and privileges
of people born in American Samoa should not be subject to the kind of political
manipulation that the second-class status of “non-citizen national” allows.
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