Early in 2015, a Washington D.C. attorney representing five residents of the tiny island territory named American Samoa sent out an e-mail updating the public on his clients’ lawsuit. He is asking the federal courts to order that all the current non-citizens in that remote island territory be reclassified as U.S. citizens.
So far most of the elected and traditional leaders and the local government have filed briefs opposing court ordered change from the current status of “U.S. nationals” under federal territorial law to full citizenship under the Constitution. In contrast, the island people of American Samoa, who share our country’s nationality but not full citizenship status enjoyed in the 50 states, have not petitioned the courts or Congress to declare citizenship in the territory, much less make it a state of the union with equal rights and duties of citizenship.
Local opposition arose because the current “U.S. national” means the U.S. protects the well-being of the island but preserves local autonomy from Washington and the customary island way of life. American nationals in the smallest territory are fiercely patriotic, but treasure their local traditions.
Still the lawyer for a few island residents seeks a court order that also would apply constitutional citizenship to Puerto Rico, Guam, U.S. Virgin Islands and the Northern Mariana Islands, which currently have citizenship under federal territorial law not by direct application of the Constitution. This would change all the territories from “unincorporated” status to “incorporated” territories, which historically means permanent union and eventual full voting rights and equality through statehood.
Even those who agree with the goal would prefer to vote on the issue rather than have a federal court dictate a new status, especially since some small territories would have to merge with a state to attain equal rights of citizenship. A court order creating permanent union also would complicate if not eliminate the option of separate nationhood based on a right of self-determination.
Undaunted by these realities, the lawyer for the American Samoa plaintiffs also has announced yet another lawsuit he will file in coming weeks. This time he will be demanding voting rights in federal elections for residents of all five U.S. island territories. Ironically, no voting would be allowed if the federal courts decide the future citizenship and voting rights, and thus the political status, of these island peoples. The lawyer’s social media message also solicited donations for lawsuits and lobbying.
The growing sense that the America Samoa clients were being used to promote a broader undisclosed agenda in other territories was reinforced by a statement made by the non-voting Congressional delegate from Guam, identifying the lawyer in the American Samoa case as a former member of her staff. The delegate from Guam added, that the American Samoa citizenship case was “…part of a legal effort…joined by many people on Guam…challenging the status quo through the current case…and other cases they may file.”
This litigation effort seeks application of the Citizenship Clause added to the Constitution by the 14th Amendment to territories not within a state. Yet, that constitutional citizenship clause confers on all Americans born in a state citizenship of the “United States and the State wherein they reside.”
The reference to state citizenship means voting rights in federal elections and voting representation in Congress are among the rights of national citizenship that can be exercised only through rights of state citizenship. Simply stated, only U.S. citizens residing in a state have voting rights for President and voting representation in Congress.
Most of the 32 territories that became states were populated by U.S. citizens eligible under the Constitution for incorporation and statehood. But starting with Louisiana and ending with Hawaii, Congressional conferral of U.S. citizenship on a previously non-citizen population was pivotal to annexation, permanent incorporation and eventual statehood, redeeming the promise of citizenship in the anti-colonial tradition of the Northwest Ordinance, our nation’s first territorial law.
Meanwhile, 4 U.S. governed territories with non-citizen populations transitioned under American rule to nationhood (Philippines, Marshall Islands, Palau and Micronesia). Today the U.S. governs the last large and populous U.S. citizen populated territory (Puerto Rico), 3 small U.S. citizen populated territories (Guam, U.S. Virgin Islands and the Northern Mariana Islands), and 1 small territory with a population of non-citizen nationals (American Samoa).
The American Samoa lawsuit seeks in a misguided way to address the denial rights in our territories since the 1922 case of Balzac v. Puerto Rico derailed the anti-colonial principles of the Northwest Ordinance. In that case the court incorrectly denied application of any rights under the Constitution to U.S. citizens in “unincorporated” territories, even though the earlier court rulings creating “unincorporated” status applied only to U.S. territories where Congress had not conferred citizenship.
Congress unwisely embraced Balzac and for decades has governed both citizens and non-citizen nationals in territories under arbitrary and often-discriminatory laws based on “unincorporated” territory status invented by the courts.
Unfortunately, history shows litigation to correct the deficiencies in territorial status policy invariably fails. For example, several lawsuits orchestrated in the first decade of the twentieth century by the hyper-litigious non-voting representative in Congress from Puerto Rico actually backfired and confirmed the imperialist doctrine of “unincorporated” territory status.
More recently multiple citizenship based voting rights cases in federal courts from citizens in Puerto Rico have failed, and in so doing reinforced the imperialist principles of the Balzac ruling. Each litigation fiasco has bolstered the fallacy of Balzac and enabled Congress to abdicate its duty to restore the anti-colonial principles of the Northwest Ordinance to federal territorial status policy.
That is why instead of asking the courts to commit new mistakes or try to make new territorial law by judicial edict, consent of the governed in these islands should be achieved through Congressionally recognized democratic self-determination by the people of each territory.