Why did lawyers decide changes to the political status of people in American Samoa should be ordered by a federal court in Washington DC, based on the dissatisfaction of five native residents of the island? Everyone has a right to try to sue the government, but if the court goes along with the American Samoa lawsuit seeking citizenship, it will redefine the status of the entire population. Why shouldn’t the call for change come from the people through referendum and representation by their elected leaders? Some of the answers are complicated, but not impossible to understand.

First, it can be argued that American Samoa has the best arrangement it can expect as a U.S. island territory that is not seeking independence or statehood. Currently, individuals in American Samoa have the option of applying for citizenship with equal rights in the states, or retaining the option of “U.S. national but not citizens” status back home on the island. Folks in the territory should be careful about becoming just another territory with citizenship but no path to equality of citizenship rights in their homeland.

The anti-democratic approach of asking judges in Washington to impose that outcome on the people may be why American Samoa’s elected local government opposes the citizenship lawsuit. American Samoa’s non-voting Delegate in Congress has even referred to the American Samoa citizenship lawsuit as “colonialism by another name.”

The attempt to get the courts to decide the political issue of territorial status began with the 1901 case of Downes v. Bidwell, a ruling that allowed Congress to govern “non-incorporated” island territories with non-citizens outside the Constitution as it applied to U.S. citizens in the states. That was colonialism, but at least it only applied to non-citizens in island territories outside the 50 states.

But it got worse after the federal courts ruled in the 1922 Balzac v. Puerto Rico case that the “non-incorporated” territory status model for territories with non-citizens populations also applied to Puerto Rico after U.S. citizenship had been granted. That meant U.S. citizenship in Puerto Rico was stripped of any rights or status different than non-citizen nationals in non-incoporated territories. What a mess!

Since the Constitution does not apply in any unincorporated territory, including American Samoa, when it comes to self-government and rights in the territory, how is “citizenship” for people in Puerto Rico or Guam actually any better than being a national in American Samoa? Sure, citizens have equal rights when they leave the territory and come to the states, but nationals can apply for citizenship in the states too. If they choose to remain nationals in the territory, at least they are not denied U.S. citizenship rights in the territory, like U.S. citizens in Guam and Puerto Rico, the Virgin Islands or Marianas.

The doctrine of non-incorporation and U.S. rule over U.S. citizens outside the Constitution never would have been embraced by the court in the 1901 case of Downes v. Bidwell if it had applied to territories with U.S. citizens. But the 1922 decision in the Balzac was written by Chief Justice Taft, who had been Governor of Philippines, then President of the United States. His personal biases held that the Philippines and Puerto Rico should not be allowed to follow Hawaii and Alaska to be incorporated under the Constitution. So he convinced the Supreme Court to treat citizenship in Puerto Rico the same as national status in the Philippines, and that prevented Puerto Rico from becoming incorporated like Alaska and Hawaii, leading to statehood.

Once that Balzac decision in the Puerto Rico case was decided, citizenship for Guam, the Northern Marianas, and the Virgin Islands became an easy out for Congress, by granting citizenship but not citizenship rights. Yet, American Samoa arguably is the only territory under the Insular Cases that have been administered outside the Constitution as originally intended by the court in those cases. The lesson of history and law is that the U.S. should not grant citizenship unless it is prepared to grant statehood, because statehood is the only way U.S. citizens can have equality.

If you don’t live in a state, then equal rights and duties of citizenship are unattainable, and there is no substitute set of rights to make citizens whole for inequality. The option of going to live in a state for equal citizenship, or going back and forth between the territory and the mainland as a national, both make sense, unless the people want incorporation, and some form of statehood such as integration with Hawaii. To make nationals in American Samoa less than equal citizens without a path to equality arguably seems like a case of repeating the mistakes made with Puerto Rico, Guam, the Northern Marianas and the Virgin Islands.

American Samoa may be a colony, but at least it is a colony with functional though not legally binding autonomy. Having autonomy that could be changed by Washington arguably is better than having citizenship that can be never be equal, and that also can be ended by Congress. So in a sense American Samoa should be proud that it is not really just another a colony with second class citizens who are denied incorporation and equality, like Puerto Rico and Guam.

Instead, American Samoa is an an unincorporated territory that has U.S. national protection and national status with the option of equal citizenship in the states. If that is going to change, arguably it should be changed by the people petitioning Congress, not by federal judges. Unless the federal courts are willing to overturn Balzac and apply the Constitution under a ruling incorporating all the territories into the U.S. with the implied promise of full equality through statehood, the courts should let Congress work out status solutions with each territory based on historical principles and practices.



One response

  1. “National” status is even worse than citizenship without equal rights- if a national travels to the US mainland, they still have to undergo a lengthy (months-long) Naturalization process, whereas a citizen from a territory is granted immediate equal protections under the law with any other citizen. Nationals are also ineligible for certain federal jobs that US citizen residing in territories are eligible for. Thus, citizenship-at-birth would be an improvement in legal status, however incremental. The whole “incorporated” vs. “unincorporated” territory bit is still a bit bizarre, however, and the distinction probably never should have been made to exist in the first place… It only makes becoming a state a more difficult process while denying citizen rights they should by all means have. It’s in the United States’ best interest to protect ALL its citizens, and make it as easy to become a state as possible- after all, we need the diversity (and more diverse votes for president than just old white folks!), the brains (after all, statehood would make it easier for the brightest minds to work their ways into the academic and political systems of the mainland- and the US could always use more scientists, and some politicians with an actual clue…), and the income taxes that more states would provide!

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