American Soman’s leaders oppose judicial resolution – judicial imposition of citizenship reproduces settler logics.

At a surface level, the case is marketed as a direct analog to Plessy—a discrimination relegating a predominantly nonwhite community to a formally separate constitutional status. But what those marketing Fitisemanu as Plessy fail to mention is that every single one of America Samoa’s elected leaders opposes judicial resolution of this question. Indeed, the American Samoa government intervened in the litigation to oppose judicial imposition of birthright citizenship, advancing a position that is backed not just by the government in its corporate capacity, but by unanimous resolutions of both houses of its legislature, its Governor, and its nonvoting Delegate to Congress.287 The American Samoa government, which is separately pursuing legislative and administrative reforms to ease the path to naturalization for those born in American Samoa who wish to move to the U.S. mainland, has made clear that it sees judicial imposition of citizenship over the objections of its entire elected government as an anomalous act of judicial imperialism.288 Such a ruling would, in their view, usurp the territory’s ongoing efforts towards political self-determination, open the door to dispossession of their native lands to outsiders, and threaten legal recognition of their way of life.

Enter the Insular Cases. In the earlier Tuaua case, the D.C. Circuit declined to hold that people born in American Samoa are U.S. citizens by virtue of the Citizenship Clause, crediting American Samoa’s concerns about how judicial imposition of birthright citizenship would threaten “social structures inherent to the traditional Samoan way of life, including those related to the Samoan system of communal land ownership.”289 To do so, the court surmised, would be “an exercise of paternalism—if not overt cultural imperialism—offensive to the shared democratic traditions of the United States and modern American Samoa.”290

However, in reaching that result, the D.C. Circuit also breathed life into the “sometimes contentious Insular Cases,” framing those cases as a necessary device for shielding the territories from “impractical and anomalous” applications of the U.S. Constitution.291 The Supreme Court denied certiorari.