Guam – An appeal has been filed with the D.C. Court of Appeals in a case which seeks to decide the question of whether or not a person born in a U.S. territory has a constitutional right to U.S. Citizenship or whether that right is merely a privilege determined by Congress.
The appeal follows a June 26th decision from the D.C. District Court which dismissed a lawsuit filed by 5 people born in American Samoa who sought U.S. citizenship. U.S. District Court Judge Richard Leon dismissed Tuaua v. United States concluding: “To date, Congress has not seen fit to bestow birthright citizenship upon American Samoa, and in accordance with the law, this Court must and will respect that choice.”
Attorney Neil Weare is the Lead Counsel in Tuaua and President of the “We the People Project.”
In an email to PNC News, Weare writes that the D.C. district court dismissal “relied on a broad interpretation of the Insular Cases to conclude there is no constitutional right to citizenship in U.S. territories.”
The appeal, says Weare in a release, “challenges the application of the controversial Insular Cases doctrine to present-day U.S. territories.”
“On appeal, the DC Circuit will have the opportunity to follow the words of the Constitution and recent Supreme Court precedent,” says Weare, and “to turn the page on the Insular Cases.”
READ the release from Neil Weare below:
DC Circuit Appeal Filed—Weare: “It is time to turn the page on the Insular Cases.”
Landmark new case in the D.C. Circuit challenges the application of the controversial Insular Cases doctrine to present-day U.S. territories
The question of whether citizenship for people born in U.S. territories is a right guaranteed by the Constitution or a privilege determined by Congress will be taken up by the D.C. Circuit now that plaintiffs in the federal lawsuit Tuaua v. United States have filed an appeal of the district court’s dismissal of their case. Tuaua is brought by people born in American Samoa whom federal statutes label “nationals, but not citizens, of the United States.” Their status as “non-citizen U.S. nationals” mirrors that in other territories before certain acts of Congress recognized statutory citizenship in those places.
The Tuaua plaintiffs carry U.S. passports, but these passports are imprinted with a disclaimer in capital letters: “THE BEARER IS A UNITED STATES NATIONAL AND NOT A UNITED STATES CITIZEN.” (see image below)
“Congress has overstepped its bounds by redefining what ‘born in . . . the United States’ means for purposes of the Constitution’s guarantee of birthright citizenship,” said Neil Weare, President of We the People Project and lead counsel in Tuaua. “Citizenship by birth within in the United States is a right guaranteed by the Constitution, not a privilege subject to congressional discretion.”
In June, the D.C. district court dismissed the Tuaua plaintiffs’ case. Setting aside the text and history of the Constitution, the district court instead focused its analysis on the Insular Cases. These controversial Supreme Court decisions from the early 1900s have been compared to Plessy v. Ferguson and criticized by First Circuit Judge Juan Torruella as establishing a “doctrine of separate and unequal” status for territorial residents. While acknowledging that “none of the Insular Cases directly addressed the Citizenship Clause,” the district court nonetheless interpreted those cases broadly to conclude that “citizenship is not guaranteed to people born in unincorporated territories.”
“This decision should raise eyebrows in Guam. If the district court is correct, Congress can turn the Citizenship Clause on and off like a lightbulb in U.S. territories,” Weare cautioned.
Congresswoman Madeleine Bordallo, an honorary member of We the People Project’s Advisory Board, said, “This case presents the opportunity to have a long overdue conversation about the relationship between the federal government and U.S. territories. Clarity on these constitutional issues will help advance the cause of self-determination on Guam.”
“On appeal, the D.C. Circuit will have the opportunity to follow the words of the Constitution and recent guidance by the Supreme Court. It is time to turn the page on the Insular Cases. Like Plessy v. Ferguson, these decisions are products of another era that belong in the dustbin of history,” Weare said.
In 2008, the Supreme Court in Boumediene v. Bush cited approvingly to Justice Brennan’s view in an earlier case that “[w]hatever the validity of the [Insular Cases] in the particular historical context in which they were decided, those cases are clearly not authority for questioning the application of [constitutional rights in U.S. territories today].” According to Boumediene, “[t]he Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply.”
Former Governor Carl T.C. Gutierrez, a member of We the People Project’s Advisory Board, said “Turning the page on the Insular Cases would be a real victory in Guam’s quest for self-determination.”
A briefing schedule in the appeal should be announced in the coming weeks.
We the People Project (www.equalrightsnow.org) is a national organization working to achieve equal rights and representation for the nearly 5 million Americans living in U.S. territories and the District of Columbia.
Serving as co-counsel in Tuaua v. United States are Arnold & Porter LLP, an international law firm, and Charles V. Ala’ilima, a prominent American Samoan attorney.
More information about Tuaua v. United States, including case materials, is available here.
Image of U.S. Passport for a so-called “non-citizen national” is included below.