Allegiance and Nationality, Citizenship and Equality

In an op-ed defending the federal lawsuit by a few American Samoans claiming a constitutional right to U.S. citizenship (“U.S. Citizenship from a Historical Perspective,” Samoa News, April 17), Charles Alailima does a lot of hand-wringing about whether calling non-Samoan federal judges “Palagis” will hurt their feelings. Alailima’s own feelings seem hurt by doubts about the wisdom trusting the same federal courts that invented American colonialism in the Insular Cases to now again decide the status of territorial peoples by judicial edict.

If the Tuana v. United States litigation project fails it will not be because federal judges are offended by local ways, any more than “ha’ole” federal judges in Hawaii. Rather, it will be because the federal courts do not have the power to extend the Constitution to American Samoa – beginning with the citizenship clause of the 14th Amendment – without thereby also incorporating all current territories permanently into the union.

Instead of worrying about hurting the feelings of federal judges, Alailima should recognize that the openly imperialist policies still defining the status of America’s last five island territories wouldn’t have lasted for more than a century if it were not for a century of rulings by Palagi judges. Now, even if the courts could simply extend 14th Amendment sourced U.S. citizenship by judicial fiat, equal rights of citizenship, including voting rights and representation in the national political system, still are not possible without statehood.

That is because equal citizenship and voting rights arise from state citizenship, as recognized by the state citizenship clause in the 14th Amendment. Thus, the real historical lesson of federal territorial policy since 1900 is that granting something called “U.S. citizenship” to some but not all territories did not, will not, and cannot lead to equality, or even a permanent status for unincorporated territories.

To be sure, there is a credible story of discrimination and even racism in 20th century federal territorial law and policy. But every time litigation was used to try and shame federal judges into fixing what federal courts broke it only has produced new rulings pouring fresh cement to fill cracks in the foundations of the Insular Cases “unincorporated territory” doctrine. Like every other federal citizenship and voting rights lawsuit since the courts first imposed the “unincorporated” doctrine on island territories, the American Samoa citizenship case probably will prolong the very “separate and unequal” status of territories that Alailima disdains.

The history of litigation projects aimed at resolution of status for territorial peoples does not bode well the American Samoa litigants. After the federal courts invented “unincorporated territory” status in 1900 the non-voting at-large Congressman from Puerto Rico adopted the same tactics Alailima and his Palagi cohorts in the Tuana v United States case now have borrowed from the past. In fact, the Congressman from Puerto Rico actively orchestrated the federal court citizenship lawsuit in the 1904 case of Gonzales v. Puerto Rico.

In that case the court’s ruling invented “national” status in order to enable the U.S. to govern non-citizens in the unincorporated territories outside the umbrella of rights provided by the Constitution. In Puerto Rico that “national” status continued until something called “U.S. citizenship” was granted by Congress in 1917, just in time for 18,000 Puerto Ricans to be drafted for military service in WWI.

But after the war was over, the same supreme federal court that created “national” status for “unincorporated” territories ruled in the 1922 case of Balzac v. Puerto Rico that Congress could govern “U.S. citizens” in Puerto Rico in the same way it governed nationals in unincorporated territories. Before Balzac the Insular Cases applied only to non-citizens, but that infamous 1922 ruling gave Congress the green light to grant citizenship to the Virgin Islands in 1927 and Guam in 1950, without a change in the status of the territory or the people.

As Congresswoman Amata Coleman Radewagen correctly pointed out, Balzac made citizenship in the unincorporated territories status constitutionally the same as national status, because the court ruled that citizenship did not trigger application of the Constitution, much less incorporation or statehood. That is why in the modern era citizenship and voting rights cases like U.S. Citizens Residing in Guam v. United States, Igartua de la Rosa v United States, and Romeu v. United States failed. Each of those cases backfired and produced court rulings confirming and reinforcing the original imperialist doctrines of the Gonzales and the Insular Cases.

The history Alailima wants us to forget is that until the Balzac ruling “U.S. citizenship” meant “incorporation” into the union under the Constitution. That eventually led to full equal citizenship possible only through statehood. In contrast, the status of “national” meant allegiance to the U.S. but did not offer the false promise of equality that comes with “Balzac citizenship” for unincorporated territories.

The maxim that “All citizens are nationals, but all nationals are not citizens” means nationality is what all Americans have in common, and citizenship is a form of nationality that holds the promise of increased rights and ultimately equality. Yet, if one loses U.S. nationality all forms of citizenship based on nationality are lost as well.

As the voters of Puerto Rico finally decided in a 2012 status referendum, full equality comes only with incorporation leading to statehood. That is the historical truth rooted in the anti-colonial tradition of the Northwest Ordinance that led the court in the pre-Balzac period to treat Alaska and Hawaii as incorporated territories whose U.S. citizens had rights and standing under the Constitution, in the same way as 32 other territories that became states.

For the small unincorporated territories, “Balzac citizenship” meant local constitutions for the islands that wanted one, U.S. passports bearing the “U.S. citizen” pedigree, and the ability to travel back and forth between the territories and the 50 states like citizens from the states. Otherwise, Balzac allowed Congress to treat U.S. citizens in the unincorporated territories the same constitutionally as “nationals but not citizens” under the 1904 Gonzales ruling.

So while “Balzac citizens” are treated differently than “nationals” coming to the 50 states until citizenship can be attained are treated differently initially, but back in the territory “citizenship” and “national” mean pretty much the same. Unless the court rules that 14th Amendment citizenship applies in all the territories and triggers incorporation leading to full equality, Tuana v. United States will not end the colonial situation for American Samoa of the other small unincorporated territories.

There is a saying “The harder the truth the truer the friend that tells it.” If American Samoa’s forefathers could write op-ed commentaries in the Samoa News today, no doubt they would thank Congresswoman Amata Coleman Radewagen for telling the people the hard truths needed for informed self-determination.

By calmly and plainly speaking truth about allegiance and nationality, citizenship and equality, the Congresswoman is supporting her people in managing expectations about the lawsuit. Like the truest of friends she is reminding her people of their own history, so they can understand the ruling of the court whenever it comes, whatever it may be.

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