Sometimes being born in the US is not enough to get US citizenship: when 'land law' doesn't work

Residents of American Samoa hold a US passport, may serve in the US military, but are not US citizens. How can this be, explains The New York Times.

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As stated in the US Constitution, "All persons born or naturalized in the United States and subject to its jurisdiction are citizens of the United States and the state in which they reside."

People born in any of the 50 states, one federal district, and four major territories (Puerto Rico, the US Virgin Islands, Guam, and the Northern Mariana Islands) automatically become US citizens.

But one American territory, which has belonged to the United States for more than 120 years and is located about 4184 km southwest of Hawaii, has no American citizens. In this territory, the "right of the land" does not work.

Jus soli (lat. jus soli, jus soli, lit. - "right of the earth") - the principle of acquiring citizenship, according to which citizenship is due to the place of birth and is not related to the citizenship of parents.

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Every April, the people of American Samoa, which has a population of about 50, celebrate "Flag Day", the most important holiday of the year. This day celebrates the fact that the five islands and two offshore atolls have become part of the United States.

Its inhabitants serve in the US military - indeed, more soldiers per capita come from the Pacific than from any other US territory or state. If residents decide to leave their island home, they can live anywhere else in the United States they like. They even have American passports.

But they are not US citizens. Instead, American Samoans are "nationals" of the United States, which is a small but significant difference. This difference does not allow them to vote, run for office and hold positions only in a narrow circle of areas. They can become citizens after moving to the mainland, but the process is long, requires passing a history test, and costs at least $725 before legal fees, with no guarantee of success.

Until recently, the difference between a US citizen and a resident of US territories was not always clear cut. Many American Samoans living in other parts of the United States voted in elections without knowing they were not eligible.

But under the Trump administration, the distinction has become more strictly enforced. In 2018, an American Samoa-born woman ran as a candidate for the Republican House of Representatives in Hawaii before learning she was not eligible to run or even vote. American Samoans serving as officers in the US Army suddenly found that if they did not naturalize, they would be demoted.

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A handful of American Samoans living in the United States have attempted to challenge the status quo. In a recent case that the U.S. Supreme Court declined to hear last month, three American Samoans living in Utah tried to demonstrate how their lack of American citizenship harmed them.

One said that his colleagues criticized him for not voting in the elections; another was prevented from pursuing a career as a policeman, he said; a third stated that, as a non-citizen, she could not sponsor her sick parents to obtain immigrant visas to the United States, where they could receive better health care. Subsequently, her father died before he could move.

It may seem surprising, but the government of American Samoa, as well as most of its citizens, opposes its residents to acquire citizenship by birthright, especially through the courts, said Michael F. Williams, a lawyer representing the government.

In 1900, the chiefs of American Samoa agreed to become part of the United States by signing a document that included the defense of Samoa's faa, a phrase meaning "Samoan way", which refers to the traditional culture of the islands.

“American Samoans have concerns that the massive incorporation of citizenship into American Samoan territory could have a detrimental effect on traditional Samoan culture,” Williams said. He added: “American Samoans believe that if they need to make this fundamental change, they should choose it for themselves, not some judge in Salt Lake City or Denver, Colorado, or Washington, D.C. , will do it."

However, the reasons why American Samoans do not have birthright citizenship were not originally due to any effort to protect Samoan culture. Instead, a series of court cases in the early 20th century known as the "Island Cases" established that U.S. territories are both part of the United States and outside it. The reason, the Supreme Court ruled in 1901, was that these territories were “foreign in an internal sense”, “inhabited by other races”, and therefore their administration “in accordance with Anglo-Saxon principles may be for some time impossible” .

Among those calling for changes to the law is Charles Alailima, a lawyer from American Samoa.

“There is only one class of citizen in the United States—with the exception of American Samoa,” he said. “What we have now is essentially the imposition of second-class status on people under government sovereignty. This is the definition of colonialism."

Some legal scholars argue that American Samoa is not fully covered by the United States Constitution, allowing it to retain certain distinctive features, including the sa, curfews for prayers in some villages, and traditional communal land ownership. They argue that the introduction of birthright citizenship would put these traditions at legal risk.

But in the 1970s, a court in Washington, D.C., found that American Samoans had a right to trial by jury, “guaranteed by our Constitution”—even after a court in American Samoa said introducing a jury would be “illogical and inappropriate foreign imposition."

According to Alailima, the introduction of jury trials has done little to change Samoa's way of life, and there is no evidence that granting citizenship will affect it. In the Northern Mariana Islands, another U.S. territory, residents can restrict land ownership to those of indigenous ancestry while still receiving citizenship by birthright.

“I was under the impression that on some level they know that if they are promoted to the level of a citizen, nothing will happen,” he said of the government of American Samoa. He added that a significant minority of American Samoans are already United States citizens by origin.

But for others in Hawaii, the US territory, which became a state in 1959, serves as a warning. “The government of American Samoa looks to Hawaii and sees what happened to the native Hawaiians. Hawaii has become a playground for wealthy Americans. Native Hawaiians get crumbs,” Williams said.

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“Programs that have been established by the state government in Hawaii for the benefit of Native Hawaiians, including the Office of Hawaiian Affairs, have been canceled or restricted by constitutional litigation based on the argument that it would be unfair to help one category of citizens. purely based on their race,” he added.

Perhaps since American Samoa is already at this risk, some argue, granting birthright citizenship to its people would make little difference. Except that the US is constitutionally obligated to grant him citizenship. But for its leaders and deeply conservative people, the unknown consequences seem far too severe for now.

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