The “Equally American” lobbying organization and its spokesman Neil Weare have made repeated attempts to convince the federal courts as well as Congress that modern era U.S. territorial law is unconstitutional due to racially offensive commentary in landmark territorial law rulings by the U.S. Supreme Court in 1901. Although those cases were part of the imperialist, colonialist and, yes, racist, ethos of that time, the actual federal law defining territorial status in the 1901 cases has been upheld by the U.S. Supreme Court in 1957, 1976, 2008 and 2016, in cases decided by court majorities that included African American Justice Thurgood Marshall and anti-discrimination crusader Ruth Bader Ginsburg.
A misleading article published in Guam claims that “American Samoans want review of ruling denying citizenship.” That’s not the case at all. Many people share headlines without even reading the stories, let along fact checking. Misrepresentation in the press can mislead the public. This particular article has spread to New Zealand,
Fitisemanu v. U.S
Now a recent ruling by the U.S Court of Appeals for the 10th Judicial Circuit in Denver has reversed a lower court ruling in the case of Fitisemanu v. U.S that was prematurely touted as a triumphant win for his crusade by “Equally American” lobbyist Weare. The 10th Circuit ruling now leaves Weare empty handed with no success in court, after 7 years and great expense to his donors. Yet, as the lead attorney for Equally American’s serial lawsuits Weare vows to persist in demanding that U.S. federal courts apply the U.S Constitution’s citizenship clause in the unincorporated territory of American Samoa the same as it applies in the States of the Union.
Weare’s appeal for a hearing of the full 10th Circuit Court of Appeals to review the ruling of the three judge ruling throwing his case out makes the same revisionist claims disingenuously misleading anyone gullible enough to believe his so far unpersuasive theories of legal history.
Meanwhile, in litigation that Weare had nothing to do with, a case from Puerto Rico on Social Security benefits for the disabled elderly has reached the U.S. Supreme Court. While that case seeking equitable statutory social safety net benefits for Puerto Rico is at least plausible if far from certain to prevail, Weare is using the success of the public defender lawyer in that Vaello-Madero case from Puerto Rico to raise funds for his so far unsuccessful lawsuits. Yet, unlike the Puerto Rico case seeking statutory equity, Weare’s citizenship lawsuit is constitutional claim seeking a judicial fiat applying the birthright citizenship clause of the 14th Amendment that currently applies only in the States to American Samoa, and then all five unincorporated U.S. territories.
Weare is appealing the loss in Denver, using funds donated to that non-profit lobbying group based on Weare’s prodigious fundraising efforts in the five unincorporated U.S. territories. Weare has made American Samoa the guinea pig in his quest for federal court mandated changes in the current political status of the five American territories under U.S. territorial law.
If the court were to change the status of Americans in the territories, that would preemptively preclude local self-determination in each territory on the new status that would result from the judicial edicts Weare seeks. Court imposed changes to the political status also would circumvent long delayed but still required action by the U.S. Congress on the inherently political question of territorial status resolution for all the last remaining territories.
Relying uncritically on Weare’s clever but disingenuous narrative, Guam’s KUAM published a report that confuses and conflates the international status of stateless people with no nationality or citizenship of any sovereign nation with the status of American Samoans, who are not stateless or without national citizenship in the international sense.
American Samoans have the same statutorily conferred US nationality as citizens from Guam and Puerto Rico, CNMI and USVI. Plus, American Samoans can obtain the same statutory citizenship by application. None of these territories have ever been recognized by Congress or the federal courts to have the same constitutionally conferred US citizenship as persons born in a state under the 14th Amendment.
The KUAM article misleads readers to believe it is the mandate of the 1898 Wong Kim Ark case that all persons born in all territories have 14th Amendment citizenship. However, the Wong Kim Ark case applies only to a person born in a state.
The article also misinforms readers that the U.S. Supreme Court ruled in 2020 that the law of the Insular Cases should not be expanded beyond the scope of the original cases. But that 2020 ruling merely mimicked a ruling in 1957 suggesting the Insular Cases should be limited to the original scope of those early rulings. Yet, the Supreme Court relied on and expanded the Insular Cases in a 2008 case cited by lawyers of Plaintiffs in Fitisemanu (Boumediene v. Bush) and in the 2016 case of Puerto Rico v. Sanchez Valle.
The claim that the court ruling by the 10th Circuit in Fitisemanu puts the current statutory citizenship of Americans in other territories at risk is a flat out untruth. Once granted, citizenship can not be stripped involuntarily except in very rare cases, if any. However, statutory citizenship for those born in the future can be conditional or ended at the discretion of Congress. At the present time, all U.S. nationals and U.S. citizens in all the territories are denied equal rights of American nationality and/or citizenship when compared to citizens in the States.
Another fallacy in the KUAM piece is that the 10th Circuit ruling threatens the U.S. citizenship of 3.2 million Americans in the five territories. That fear tactic has no basis in fact or law.
The current U.S. nationality and citizenship of Americans in all five territories is conferred by federal statutes enacted under Article I, Section 8, Close 4 of the U.S. Constitution (See, 8 U.S.C. 1401-1408). The 10th Circuit ruling in Fitisemanu simply and accurately states that the source of the current U.S. citizenship is not the 14th Amendment of the Constitution, but rather 8 U.S.C. 1401-1408.
Full citizenship rights?
Only if the court had ruled in favor of Fitisemanu would the current statutory citizenship be ended in favor of 14th Amendment citizenship. However, applying the 14th Amendment would incorporate the territories into the union permanently, but would not secure the right to vote in federal elections for full and equal representation in Congress and the Electoral College under Art. I, Sec. 2 and Art. II, Section 1, respectively.
That means even if Weare wins his case on appeal and territorial status becomes constitutionally permanent, the territories would remain less than fully and democratically self-governing. For U.S. citizens in the territories only integration into an existing State or admission as a State will secure fully equal citizenship rights.
The only alternative is amendment of the U.S. Constitution to give territories the same political powers and rights as States of the Union, without sharing equal benefits and burdens of statehood. Why would that ever happen when admission as States or integration into an existing State requires a simple majority vote in both Houses of Congress, but an Article V amendment requires 2/3’s in both Houses or 2/3’s of the States?