The Politics of Birthright Citizenship in U.S. Territories

By: Mona Manglona
By: Mona Manglona

When you think of the composition of the United States of America, the general portrayal consists of exactly that, 50 United States of America. What many Americans are unaware of is the fact that the United States of America is made up of more than just 50 states. The U.S. governs over sixteen territories, five of which are inhabited. The five inhabited territories include: Puerto Rico, Guam, the Northern Mariana Islands, the U.S. Virgin Islands, and American Samoa. These five territories are subject to the jurisdiction and sovereignty of the United States. All laws of the United States must be abided and citizens of these five territories are just as affected and impacted by the decisions made by our U.S. leaders as anyone who lives within the 50 states.
The five inhabited territories have varying agreements with the U.S. that classify their constitutionality and the rights they acquire from being a part of the U.S. Puerto Rico became a U.S. territory in 1898 when it was acquired from Spain after the Spanish-American war[1]. Post Spanish-American war, the second U.S. territory, Guam, became established as a U.S. territory along with Puerto Rico as a result of Spain relinquishing the two islands under the Treaty of Paris[2]. American Samoa became a U.S. territory in 1898 as well. The Northern Mariana Islands became a part of the U.S. through the defeat of Japan in WWII. It is one of two commonwealths under the United States along with Puerto Rico. The U.S. Virgin Islands was purchased by the U.S. in 1917 from Denmark. These five major territories are self-governing, with locally elected officials, and legislature reflecting that of the U.S.[3]
The five major territories are categorized into two sections: Unincorporated organized territories and unincorporated unorganized territories. Guam, the Northern Mariana Islands, the U.S. Virgin Islands, and Puerto Rico are all unincorporated organized territories while American Samoa falls under the latter. An unincorporated territory is an area controlled by the U.S. government in which the fundamental rights apply as a matter of law to those inhabiting the territories, but other constitutional rights variously apply depending on the Organic Acts imposed by congress and the agreements each individual territory has with the U.S. What distinguishes an organized territory from an unorganized one is that organized territories has a standard constituted system of government. American Samoa while often viewed as an organized territory, is technically unorganized because U.S. congress has not passed an Organic Act to solidify their form of government. An Organic Act is an act set by congress that recognizes the establishment of a territory under the United States of America.
The Citizenship Clause of the 14th Amendment states, “All 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.” In accordance with the Citizenship Clause, all persons born in the United States and areas subject to the jurisdiction of the United States which has been understood as being territories of the U.S. are given citizenship. This is true for four of the five major territories. Those born on Guam, the Northern Mariana Islands, and the U.S. Virgin Islands have all been granted U.S. citizenship. Puerto Rico has statutory citizenship which means that citizenship was granted through congress and not as a natural right as stated in the U.S. Constitution[4]. U.S. citizenship, however, has not been a right granted upon those who are born in American Samoa.
Leneuoti Tuaua was born in American Samoa. Tuaua is the lead plaintiff in the federal lawsuit against the United States. Tuaua, who has the support of the Samoan Federation of America, and all those born in American Samoa strongly believe in their right to citizenship given the 115 years that the territory has been under U.S. control. Tuaua v. United States challenges the constitutionality of the federal laws that deny them of U.S. citizenship. Tuaua utilizes the 14th Amendment’s Citizenship Clause as a precedent that supports his and his peoples claim. The argument against Tuaua’s claim uses the Slaughterhouse Cases as reason to withhold citizenship to those born in America Samoa. The Slaughterhouse Cases involve the first U.S. Supreme Court interpretation of the 14th Amendment. The central argument comes from the notion that, ““those . . . who had been born and resided always in the District of Columbia or in the Territories, though within the United States, were not citizens.”
The Obama Administration argues that Congress has the power to exclude Americans born in U.S. territories from the Constitution’s Citizenship Clause based on the precedence of the controversial Insular Cases doctrine.  However in the Supreme Court case Boumediene v. Bush, the Supreme Court noted, “the Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply.”[5] Those born in American Samoa are recognized as non-citizen nationals which grants U.S. nationality but not U.S. citizenship, on persons born in “an outlying possession of the United States” or born of a parent or parents who are non-citizen nationals who meet certain physical presence or residence requirements.[6]
In June 2013, the District Court concluded that the Citizenship Clause does not guarantee birthright citizenship to American Samoans. The case however did not end there, on February 1, 2016, Tuaua’s attorneys filed a Petition for Writ of Certiorari  requesting that the Supreme Court review the decision of a lower court denying citizenship to people born in American Samoa[7]. American Samoans want nothing more than to have citizenship granted to them as a constitutional right and not a mere privilege granted to them from congress. American Samoa is the only U.S. territory that does not automatically grant U.S. citizenship which deprives them from voting, working jobs that require citizenship, traveling with a U.S. passport that proves citizenship, however they can still enlist in the military. Tuaua v. United States is a pivotal movement for those born in U.S. Territories. If reviewed and accepted by the U.S. Supreme Court, Tuaua will help clarify the blurred interpretations of what it means to be a U.S. citizen outside of the fifty United States of America.
[1] Puerto Rico Report, Puerto Rico is a Territory of the United States. July 3, 2011.
[2] Yale Law School, Treaty of Peace between the United States and Spain. December 10, 1898.
[3] US General Accounting Office, U.S. Insular Areas: Application of the U.S. Constitution, November 1997.
[4] History, Puerto Ricans become U.S. citizens, are recruited for war effort. N.D.
[5] WeThePeople Project, About Tuaua v. United States, N.D.
[6] U.S. Department of State Bureau of Consular Affairs, Certificates of Non Citizen Nationality, N.D.
[7] Frances Wang, American Samoan Citizenship Case Arrives at Supreme Court, February 2, 2016.

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