Connecting the dots

As if Puerto Rico doesn’t have enough of its own political status issues to worry about! Now we are expected to care about a federal lawsuit on American Samoa’s status, brought by Samoans in Salt Lake City?

Yes. That lawsuit is actually the centerpiece of a national media blitz highlighting the plight of Americans in all the U.S. territories who lack the rights of citizens in the 50 states. If it goes to the U.S. Supreme Court the outcome could change the law and the odds on whether Puerto Rico will become a state.

That’s because the American Samoans in Utah claim all Americans born in the U.S. territories have the same birthright constitutional U.S. citizenship as Americans born in a state of the union. This challenges recent U.S. Supreme Court rulings upholding federal territorial law. Current law says that people born in the territories — Guam, American Samoa, the U.S. Virgin Stands, Northern Mariana Islands and Puerto Rico — have U.S. “nationality” and in most cases a limited class of “U.S. citizenship” conferred by Congress under federal territorial statutes. Currently, only those born or naturalized in a state acquire full citizenship under the U.S. Constitution.

Samoa is different

All Americans born in territories have U.S. nationality, but only American Samoa has never sought reclassification under federal territorial statutes as “citizens.” While living in the four other territories with “nationality” reclassified “citizenship” there is no legal difference from “national” status in American Samoa. In all territories, whether the residents are “national” or “citizen,” equality with citizens in the states is denied. None have full voting rights and representation.

But when “citizens” from most of the territories relocate and become residents of a state, they can vote in their new state of residence. As nationals, American Samoans who come to reside in a state can vote only by applying for reclassification as “citizens.” In effect, nationals in the other four territories are reclassified by statute with limited citizenship at birth, but nationals from American Samoa are reclassified by choice when they come to a state.

So far the U.S. nationals of American Samoa have never petitioned or voted for automatic reclassification back home, where they have the same rights as “citizens” back home in the other four territories. The vast majority of American Samoans prefer to have and make that choice instead of having a Congress in Washington where they are not fully represented make it for them.

What’s happening in Utah?

Representative Radewagen-Coleman, American Samoa’s representative in Congress, has written about a case in Utah brought by some U.S. nationals from American Samoa with the support of the “Equally American” project. This case tries to change the nature of territorial status in American Samoa. Representative Radewagen-Coleman’s article offers an alternative: an easier path to citizenship for U.S. national from American Samoa.

The lawyers bringing the case in Utah convinced American Samoans having that choice is a denial of equal rights, but not a denial of equality with other nationals who are “citizens” in the other four territories. Instead, the “Equally American” lawyers in the Utah lawsuit argue that all nationals from all the territories, reclassified as “citizens” or not, are being denied a right to the same full nationality and citizenship rights under the U.S. Constitution as citizens born and living in the states.

Who needs statehood if territories have the same rights as states?

The lawsuit in Utah claims that denial of constitutional citizenship states enjoy in the U.S. territories is a form of the same unconstitutional discrimination practiced under racial segregation laws. Racial segregation between white and African-American people was legal under the “separate but equal” doctrine of the U.S. Supreme Court ruling in the case of Plessy v. Ferguson, allowing separate schools for white and black.

Lawyers for the American Samoans defend that claim by noting the Supreme Court justice who wrote the Plessy v. Ferguson ruling also wrote the Downes v Bidwell ruling in 1901. That case held that birthright citizenship for states and other provisions of the U.S. Constitution do not apply to territories unless Congress so provides by federal territorial statute.

However, statutory nationality and citizenship under federal territorial law exists and is granted at the discretion of Congress, and its future conferral can be ended by Congress. This preserves the power of Congress and the commitments made to the territories to honor self-determination between future statehood, nationhood based on independence, or continued territorial status.

The constitutionally temporary status of territories and discretionary rather than constitutionally mandated conferral of future citizenship also preserves the power of Congress under Art. I of the Constitution to give or not give nationality and citizenship by statute to persons who do not acquire it under the Constitution by birth or naturalization in a state.

If the territories have the same vested rights to citizenship or other rights of statehood as a political status, then Congress no longer has the power under Art. IV to determine disposition of the status of territories or end U.S. nationality. The anti-statehood faction in Puerto Rico and its allies in Congress would welcome this ruling, until they understood its real implications. At first they would see it as guaranteed citizenship in perpetuity without having to make the hard choices between statehood and nationhood after all.

Over time they would see such a court ruling as creating a political purgatory for the “citizens” of the territories worse than seems currently imaginable.

What’s the only thing worse than racial segregation?

Racial attitudes in 1901 do not define the constitutional validity or invalidity of territorial law and policy in 2018. Legally, the importance of the Supreme Court’s ruling in 1901 that the Constitution did not apply to some territories is that it preserved the power of Congress to determine if those territories would be incorporated into the union leading to statehood, or retain the choice of future nationhood.

At the time the residents were not recognized as U.S. nationals or citizens. Indeed, the territories in question included the Philippines, which was too vast and populous for statehood, so the option of nationhood had to be preserved. A court ruling that territories have the same rights and powers as states, including full constitutional citizenship, would take away and deny the full range of choices both Congress and the territorial peoples have based on the principles of democratic self-determination.

It would incorporate the territories under the U.S. Constitution by judicial edict instead of Congressional discretion. Only when Congress exercises that discretion to incorporate a territory into the union is there a commitment to eventual statehood. So the court is being asked to order permanent citizenship rights that come only with incorporation under the U.S. Constitution leading to statehood, without a promise of statehood.

Another precedent

Instead of comparing current territorial law preserving choices for Congress and the territories to segregation under Plessy v. Ferguson, the status “Equally American” is asking the courts to create is more similar to that of territories under the infamous 1857 ruling in the case of Dred Scott v. Sanford. That case held that the U.S. Constitution applies in territories, but that there was no path to full and equal citizenship for freed or runaway slaves in the territories.

It is not going to happen, but let’s imagine the “Equally America” litigation project is successful and courts declare that American Samoans in Utah and U.S. nationals and U.S. citizens in all the territories have some or all of the same status and rights as citizens born in states and the states under the U.S. Constitution. What needs to be recognized is that incorporation without a promise of statehood could not extend to the territories the equal federal voting rights that distinguish between U.S. in a territory and citizenship in a state.

Specifically, Art. I and Art. II of the U.S. Constitution restrict voting rights and representation in the Congress and Electoral College to citizens of the states. Allocation of those rights to voters who are not citizens of a state and whose votes are not tied to the interests of state voters or apportioned to state population would be an unconstitutional dilution of the one man one vote rights of the citizens in every state. That is why Congress can not simply enact a statute giving the territories voting representation in Congress or the Electoral College.

The real result would be that like freed or runaway slaves under the Dred Scott ruling, the so-called “U.S. citizens” in the territories after federal courts ordered application of the birthright citizenship provisions of the U.S. Constitution outside the states would have no path to full equality of representation and voting rights that come only with statehood.

Back to the future

“Equally American” lead lobbyist and counsel Neil Weare insists application of the Constitution’s national and state citizenship clause (14th Amendment, Section 1) to the territories by court order would be an irreversible step to full equality. Clearly, that fails to address the situation the territories are in today. Unless the U.S. Constitution is amended, the territories become sovereign nations, or the territories achieve statehood through admission or integration with an existing state, territorial status will continue.

It is in that context that readers best can connect the dots and understand the important meaning in the masterfully articulated and courageous advocacy of hard truths in a recent statement by Representative Radewagen-Coleman. She correctly notes that the only thing worse than current territorial law would be a new series of “Insular Cases” denying self-determination to U.S. territories on citizenship and status issues.

In light of calls by “Equally American” litigation project for yet more intrusion by federal court into territorial political status questions, Representative Radewagen stands up for self-determination.



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