> The local American Samoan government has before taken a nuanced view over the issue, given concern about how aspects of Samoan life and culture “would be jeopardized if subjected to scrutiny under the 14th Amendment,” according to court documents filed in 2014 by lawyers representing the government
I wonder why the government wouldn't want that, and what ways they think it would jeopardize the culture.
> About 90 percent of the land is communally owned by aiga. The existing tenure law on communal lands prohibits alienation of any real property except freehold land to any person whose blood is less that one-half Samoan. Unless the Governor approves the transfer in writing, it is unlawful for any matai of a Samoan family to alienate any family lands to any person or lease it for any term more than 55 years. ASG estimates that 1.5625 square miles of American Samoa's total area of 76.1 square miles are freehold land.
You probably don't realize it, but projecting European values and customs onto other peoples is a form of white supremacy. There is nothing universal about the way European countries and their former colonies govern themselves. It is quite reasonable that many non-European people would want to be governed by principles incompatible with ours as Americans.
American Samoa has laws that say that only American Samoans can own land or be a member of their local government. What the 14th Amendment may give them in terms of US citizenship, the 14th Amendment takes away with regard to these exclusionary laws.
> What the 14th Amendment may give them in terms of US citizenship, the 14th Amendment takes away with regard to these exclusionary laws.
Except it doesn't. Even if the term “United States” in the first clause might be argued to include the whole territory of the nation called the “United States” and not just specifically the constituent states (which is the crux of the citizenship argument), that doesn't imply that the word “State” in the remainder of the Amendment means something other than the individual states of the Union. And all the restrictions are of the form “No State shall...”
I know that Constitutional protections don't apply in their entirety in Puerto Rico, so I imagine there's ways in which it has been construed similarly in American Samoa. If it's not an incorporated territory (just an island the US happens to own), they are treated differently.
Puerto Rico is, like American Samoa, an unincorporated territory. Well, the government doesn't consider it incorporated, although some legal scholars suggest that Congress did end up incorporating it at some point via accumulation of various acts (the argument has not, to my knowledge, been tried in court).
Congress can do almost whatever it wants with any territory (subject to much less limits than apply to Congres action against states), but the 14th Amendment doesn't really have anything to do with that.
Even if the term “United States” in the first clause might be argued to include the whole territory of the nation called the “United States” and not just specifically the constituent states
So you're arguing that people born in the District of Columbia aren't US citizens either?
> So you're arguing that people born in the District of Columbia aren't US citizens either?
No, I'm arguing that the debate about the scope of the term “United States” in the first clause of the Amendment has no impact on the scope of term “State” in the rest of the Amendment.
And by the federal construction, all states acting together in concert--as the federal government--are also forbidden from doing those things "no state shall" do. But the 14th also includes "subject to the jurisdiction thereof".
The essential element for the territories is whether the federal US has jurisdiction there in addition to sovereignty. The US definitely has sovereignty over American Samoa, as it is a territory not a protectorate, but the jurisdiction remains in the local entity of American Samoa, under its constitution and statutes, except where it has been explicitly ceded or shared, or seized.
As such, the court would have to examine whether he was subject to the jurisdiction of the United States at the time he was born. As the United States makes a distinction between "incorporated" and "unincorporated" territories, one could argue that the "unincorporated" status is an indicator that the US refuses to extend its jurisdiction there.
So he does not have a valid claim under the 14th Amendment. It would be up to American Samoa to petition Congress to be "incorporated", and thereby subject itself to the federal jurisdiction of the US, and also to make that status retroactive beyond the birthdates of the class plaintiffs, in order for the court decide the case has merit. If it were to do so, the exclusionary local laws that favor island natives would then be subject to examination under equal protection and federal nondiscrimination clauses. If they want equal rights as the mainlanders, they have to erase the distinctions on the island, too.
If Samoa becomes incorporated, all the normal constitutional protections apply.
Well the Democratic party thinks all Mexicans should be offered US citizenship and be allowed to vote in American as well as Mexican elections, so giving Samoans citizenship should be a no brainer.
The last time with just 25% turnout --- lower than the Illinois midterms --- in part due to a boycott of the referendum by anti-statehood groups. The preceding 3 referendums voted against statehood.
It's a non-binding referendum, and Puerto Ricans have been debating the wording of these polls for over a decade. Neither side can pretend that there's a clear public will in either direction --- especially since public support for statehood sometimes carries some unrealistic predicates (continued support for a Spanish official language and the continuation of the PR legal system, which is something like half-ours and half-theirs).
I'm a Democrat and would like to see PR a state, but it's not honest to pretend that this is a cut-and-dried decision. There are benefits to the limbo PR is in right now: US citizenship without income tax and much more control over the operation of their territory than they'd have as a state.
There are three camps: statehood, independence, and status quo. Over time, statehood has captured more and more of the vote, and probably constitutes a plurality of the vote at this time (maybe a majority, I don't know), followed somewhat closely by status quo and very distantly by independence.
The operative word is probably: the most recent referendums were designed to provoke the statehood option, leading to the results being ignored as not providing a clear mandate. Constant relitigation of the issue over the past decade doesn't help with apathy. It doesn't help that status quo may not be a realistic option: there's a lot of unclear legal issues with little appetite to litigate them.
I suspect that Puerto Rico will eventually become a state, but it's politically difficult for that to happen without a clear mandate, and there doesn't seem to be much appetite for providing a truly fair and clear referendum in this matter.
It'll push more people to decolonialization, I'm sure, but where statehood or independence gets the boost is unclear. It won't matter as long as Congress isn't interested in decolonialization.
> The operative word is probably: the most recent referendums were designed to provoke the statehood option
The most recent referendum was held only because the federal government preferred another referendum to honoring the statehood win in the prior referendum, which had 78.19% turnout, and a two-question format where a clear majority chose not to continue territorial status and a clear majority chose statehood as the new status.
> I suspect that Puerto Rico will eventually become a state, but it's politically difficult for that to happen without a clear mandate
There was a clear mandate after the 2012 status referendum. It is difficult when a majority of Congress doesn't want it to happen for reasons for mostly partisan political reasons, and will seize on any excuse to ignore thr clear desire to end the colonial relation.
People opposed to statehood boycotted the referendum, leading to a 23% voter turnout rate (one that usually hovers around 80%). That figure isn't really representative of the will of the Puerto Rican people.
Statehood is a one way trip. It would also remove some of their automomy. They are so far from America and have a distinct culture. They may eventually want to split off. Best to leave it as a territory.
Furthermore, the population is tiny. There are dozens of college footballs with better attendence. It doesn't make sense to give them two senators and a congressman.
If they really wanted to be part of state, lump it in with Hawaii.
Guam is torn by this one. Many there, like is American Samoa, want to be able to restrict land ownership to indigenous people. As states, this would not be permitted.
This is really the crux of the issue: control over local land. It doesn't really apply on a contiguous mainland (though I'm sure Native Americans would disagree, and to a lesser extent Portlanders and Seattlites), but the issue is becoming apparent in these small islands.
It is also becoming an issue in Hawaii, where relatively poor locals are priced out of housing by relatively rich mainland transplants. There are some Hawaiian activists who would prefer their island be independent, though I think unicorporated and have some form of commonwealth (like the Northern Marinaras) would be more realistic. In the end, sovereignty is a spectrum.
We should be reluctant to grant statehood for many small territories.
Our senate is undemocratic enough, where a state with 1/7th the population of California, viz. Wyoming, gets the same numbers of senators.
Guam, including resident military personnel, has 1/4 the population of Wyoming. Does it make sense to grant 160K people all the powers of full statehood? American Samoa has 1/3 the population of Guam, so two senators for slightly over 50K people. That's 84 times the per capita representation in the Senate.
The Pacific territories should really just become part of the state of Hawaii. They can have special status within the state, so their needs don't get ignored by the larger Hawaiian population.
It makes as much sense to give Guam the same statehood privileges as Wyoming as it does to give Wyoming the same as California, it makes about as much sense to merge all the Pacific territories into Hawaii as to merge all the Mountain states into one.
The Constitution prohibits that even by Constitutional Amendment (seriously, the one thing an Amendment cannot do is mess with representation in the Senate), though it doesn't prohibit stripping the Senate of all of its functions and giving them to some new body.
Some individual rights need to be protected against the "tyranny of the majority." For example, a person with an unpopular view should still enjoy free speech. And of course, a majority should not be allowed to vote to enslave a minority.
That's a great argument for the 1st and 13th amendments. Perhaps those should actually be written in to the new document itself. We could even go further and adopt the Universal Declaration of Human Rights.
That doesn't change the fact that the American three branch bicameral system has not aged well and is profoundly undemocratic by design.
Would it be possible to amend the Constitution twice to accomplish this? First, amend the part that prohibits changing Senate representation, then amend the Senate representation?
You are not quite correct. Article V places two restrictions on amendments.
The first restriction has now expired. It stated that prior to 1808, no amendment could give Congress the power to forbid the importation of slaves, and no amendment could establish or grant power to establish a direct ("capitation") tax.
The second restriction is still in force, but what it actually says is that "no state, without its consent, shall be deprived of its equal suffrage in the Senate".
So equal representation in the Senate could be abolished by an amendment, if every state ratified it (since that would satisfy the requirement of each state giving consent to "be deprived of its equal suffrage"). It's also arguable that the 17th Amendment -- which changed election of Senators to be by the people of each state rather than by the legislature of each state -- already violated this clause by causing the Senate to cease to represent the states.
The same with the presidency. It's even less democratic than the senate: the individual is not directly elected by voters. Once in office they have virtually unlimited power: executive orders, which require no approvals to enact. Only occasionaly do the courts step in to check them. No single person should have this much power.
I was born in the Canal Zone when it was a U.S. territory. Both parents were American. By an act of Congress I am a natural born citizen. I’ve always been under the impression that it was well established that it is a power of the government to manage citizenship status for possessions/territories and whatnot. I’m surprised if there is any legal merit to the challenge. Though I do hope they win.
I went to American schools in the Canal Zone. I don’t speak Spanish and I always thought of myself as American. When I came to the U.S. to live my expectations about America did not correspond to reality. As time goes on this chasm is increasing. I’ve been in the U.S. for 30 years now. Samoans may end up regretting if they win!
In general, a Child Born Outside the U.S. is a Citizen at Birth when the Child’s Parents Are Married to each other at the Time of Birth IF...
Both parents are U.S. citizens at the time of birth,
AND...
At least one parent lived in the U.S. or its territories prior to the birth
Canal Zone is a US territory.
OP's case is interesting because the petitioner's parents are not citizens.
So, if both of my parents are US citizens, but not married, and I'm physically born in India(which doesn't have birthright citizenship) - am I a citizen of no country?
Which is exactly why Obama qualified as a citizen regardless of where he was born. Since his parents were not legally married, only the mother's citizenship mattered.
If the mother is an American, it's not complicated. There are other cases, but the "both parents are American citizens" case is pretty straightforward.
Those requirements boil down to this:
- One parent must be a citizen.
- That parent needs some connection to the US, measured by how much time they've spent living there.
- If the citizen parent is male, he must prove that the child is related to him.
- If the citizen parent is male, he must swear a binding legal oath to financially support the child.
The rest resolves these questions:
- How much residential connection to the US must citizen parents have, based on the couple's total Americanness? (more Americanness, less time)
- Can we just assume that married men are the fathers of their wives' children? (yes)
- What counts as being "in America"? (government service abroad counts)
> If the mother is an American, it's not complicated.
> Can we just assume that married men are the fathers of their wives' children? (yes)
My sister in law was born and raised in America. She now lives in the EU and has a child with her wife. Despite gay marriage being legal in the US, her child is currently unable to obtain American citizenship because she was not the biological mother.
I would assume the same applies to straight parents who adopted, in fact I have a family member on my wife’s side who adopted from China.
You are having the same issues my brother in law is having. You need to live in the US to make the process easier. It actually been a pain to get his wife a work permit because they haven’t lived here in 10 years.
> John McCain also had American parents, so he was a natural-born citizen anyhow.
Not sure it's all that simple. Say, for example, he was born in Kenya to American parents. Would that make him a "natural born citizen" eligible to become president?
According to the wikipedia:
> The consensus of early 21st-century constitutional scholars, together with relevant case law, is that natural-born citizens include, subject to exceptions, those born in the United States.
Complicated stuff -- if you're born on a US military base in a Germany vs a hospital next to the base &etc...
We did have a governor appointed by the President. I believe it was considered a territory of the United States. We were part of a federal court circuit. I don’t think it was a lease. My understanding is that the Bunau-Varilla treaty gave the U.S. rights over the land in perpetuity but that this was not a lease. It was a weird entity though as all the land was owned by the Panama Canal Company or the military.
@sykh: But a child of Panamanian citizens born in Gorgas Hospital was not be entitled to U.S. citizenship.And let's not forget that a child of a U.S. citizen father is treated differently from a child of a U.S. citizen mother. The Canal Zone was always half-in, half-out.
The US has a concept of incorporated territories versus unincorporated territories, with the difference being whether or not the constitution is meant to fully apply (It's effectively a legalistic distinction between "state-to-be" and "colony"). The only remaining incorporated territory is the uninhabited Palmyra Atoll (created by removing it from Hawaii when Hawaii became a state).
Since unincorporated territories are not meant to be thought of as the United States proper, provisions like birthright citizenship don't apply. I don't think all of the relevant claims have been litigated before the Supreme Court. Since the Insular Cases in the early 20th century, the Supreme Court has slowly walked back some of the distinctions. In addition, Congress has expressly granted many rights (such as citizenship, not mere nationality) to Puerto Rico, which is the substantial portion of the territories.
I mean the Declaration of Independence was pretty clearly a strong statement against the whole concept of "unincorporated territories", but what's obligatory on the goose isn't always accepted by the gander.
SCOTUS has more or less ruled that the Bill of Rights applies to unincorporated territories (and even extraterritorial jurisdiction, as Bush Jr. found out).
One complication is that, as the Declaration of Independence forcefully points out, the fundamental issue is the right of people to alter their government if they view it as destructive to inalienable, natural rights--and most of the people in these territories actually like the status quo political situation (cf. the several Puerto Rico status referendums which generally all signify a plurality preference for status quo, even if the legal viability of the status quo is questionable).
The concept of citizenship is all super squirrelly in the U.S as a whole. Take for example rich foreigners who fly in their pregnant wives to give birth at XYZ hospital, and immediately confer their children citizenship.
How is that okay? Totally skip all laws and regulations by simply flying a couple weeks prior to the due date and voila! Screw everyone else waiting in line.
source: know people who have done this for each of their four kids.
I agree - it is a loophole for the rich, as well as for Canadians, Mexicans, and Caribbean islanders who have easy access to America(as opposed to, say, Malagasys)
What law are they breaking or skipping? This is perfectly legal (in fact, backed by the US Constitution) and IMHO one of the great aspects of the US (policy of jus soli).
Well back in the 18th century, travel across continents was longer than 24 hours. They are not breaking any laws, but the entire point of immigration is null and void if more people did this.
I’m actually pro free borders. But as it stands this is a weird way of abusing the current system.
I would point out that this article focuses on Samoans who work in Utah, home of the Mormon Church. Sure enough, Mormons have an odd zeal to convert Samoans and bring them into their church [1]. So while the actions of individuals can be taken at face value, it's also worthwhile to point out what organizations and other influences may be behind this, and consider whether that aligns with the interests of all who come from and/or live in American Samoa.
Those of you old enough may remember bill Clinton putting a " no taxation without representation" on the presidential limo when leaving office to protest lack of Congress people from puerto rico. The same applies to citizenship. This American apartheid is antiquated and all territories should be States and all inhabitants made citizens.
78 comments
[ 4.3 ms ] story [ 132 ms ] threadI wonder why the government wouldn't want that, and what ways they think it would jeopardize the culture.
> About 90 percent of the land is communally owned by aiga. The existing tenure law on communal lands prohibits alienation of any real property except freehold land to any person whose blood is less that one-half Samoan. Unless the Governor approves the transfer in writing, it is unlawful for any matai of a Samoan family to alienate any family lands to any person or lease it for any term more than 55 years. ASG estimates that 1.5625 square miles of American Samoa's total area of 76.1 square miles are freehold land.
https://www.doi.gov/oia/islands/american-samoa
You probably don't realize it, but projecting European values and customs onto other peoples is a form of white supremacy. There is nothing universal about the way European countries and their former colonies govern themselves. It is quite reasonable that many non-European people would want to be governed by principles incompatible with ours as Americans.
https://books.google.com/books?id=e_tKDwAAQBAJ&pg=PA87&lpg=P...
American Samoa has laws that say that only American Samoans can own land or be a member of their local government. What the 14th Amendment may give them in terms of US citizenship, the 14th Amendment takes away with regard to these exclusionary laws.
Except it doesn't. Even if the term “United States” in the first clause might be argued to include the whole territory of the nation called the “United States” and not just specifically the constituent states (which is the crux of the citizenship argument), that doesn't imply that the word “State” in the remainder of the Amendment means something other than the individual states of the Union. And all the restrictions are of the form “No State shall...”
So you're arguing that people born in the District of Columbia aren't US citizens either?
No, I'm arguing that the debate about the scope of the term “United States” in the first clause of the Amendment has no impact on the scope of term “State” in the rest of the Amendment.
The essential element for the territories is whether the federal US has jurisdiction there in addition to sovereignty. The US definitely has sovereignty over American Samoa, as it is a territory not a protectorate, but the jurisdiction remains in the local entity of American Samoa, under its constitution and statutes, except where it has been explicitly ceded or shared, or seized.
As such, the court would have to examine whether he was subject to the jurisdiction of the United States at the time he was born. As the United States makes a distinction between "incorporated" and "unincorporated" territories, one could argue that the "unincorporated" status is an indicator that the US refuses to extend its jurisdiction there.
So he does not have a valid claim under the 14th Amendment. It would be up to American Samoa to petition Congress to be "incorporated", and thereby subject itself to the federal jurisdiction of the US, and also to make that status retroactive beyond the birthdates of the class plaintiffs, in order for the court decide the case has merit. If it were to do so, the exclusionary local laws that favor island natives would then be subject to examination under equal protection and federal nondiscrimination clauses. If they want equal rights as the mainlanders, they have to erase the distinctions on the island, too.
If Samoa becomes incorporated, all the normal constitutional protections apply.
I think we should offer automatic citizenship and cheap transportation for all citizens of US territories to the mainland, though.
How many tickets do you want to purchase? I am collecting donations. Unless you are just talking...
Statehood won the last two status referenda in Puerto Rico.
I'm a Democrat and would like to see PR a state, but it's not honest to pretend that this is a cut-and-dried decision. There are benefits to the limbo PR is in right now: US citizenship without income tax and much more control over the operation of their territory than they'd have as a state.
The operative word is probably: the most recent referendums were designed to provoke the statehood option, leading to the results being ignored as not providing a clear mandate. Constant relitigation of the issue over the past decade doesn't help with apathy. It doesn't help that status quo may not be a realistic option: there's a lot of unclear legal issues with little appetite to litigate them.
I suspect that Puerto Rico will eventually become a state, but it's politically difficult for that to happen without a clear mandate, and there doesn't seem to be much appetite for providing a truly fair and clear referendum in this matter.
Lot harder to ignore them when they have 2 senators and a rep to raise hell.
The most recent referendum was held only because the federal government preferred another referendum to honoring the statehood win in the prior referendum, which had 78.19% turnout, and a two-question format where a clear majority chose not to continue territorial status and a clear majority chose statehood as the new status.
> I suspect that Puerto Rico will eventually become a state, but it's politically difficult for that to happen without a clear mandate
There was a clear mandate after the 2012 status referendum. It is difficult when a majority of Congress doesn't want it to happen for reasons for mostly partisan political reasons, and will seize on any excuse to ignore thr clear desire to end the colonial relation.
Furthermore, the population is tiny. There are dozens of college footballs with better attendence. It doesn't make sense to give them two senators and a congressman.
If they really wanted to be part of state, lump it in with Hawaii.
I'd be fine giving them citizenship.
It is also becoming an issue in Hawaii, where relatively poor locals are priced out of housing by relatively rich mainland transplants. There are some Hawaiian activists who would prefer their island be independent, though I think unicorporated and have some form of commonwealth (like the Northern Marinaras) would be more realistic. In the end, sovereignty is a spectrum.
Our senate is undemocratic enough, where a state with 1/7th the population of California, viz. Wyoming, gets the same numbers of senators.
Guam, including resident military personnel, has 1/4 the population of Wyoming. Does it make sense to grant 160K people all the powers of full statehood? American Samoa has 1/3 the population of Guam, so two senators for slightly over 50K people. That's 84 times the per capita representation in the Senate.
The Pacific territories should really just become part of the state of Hawaii. They can have special status within the state, so their needs don't get ignored by the larger Hawaiian population.
That doesn't change the fact that the American three branch bicameral system has not aged well and is profoundly undemocratic by design.
The first restriction has now expired. It stated that prior to 1808, no amendment could give Congress the power to forbid the importation of slaves, and no amendment could establish or grant power to establish a direct ("capitation") tax.
The second restriction is still in force, but what it actually says is that "no state, without its consent, shall be deprived of its equal suffrage in the Senate".
So equal representation in the Senate could be abolished by an amendment, if every state ratified it (since that would satisfy the requirement of each state giving consent to "be deprived of its equal suffrage"). It's also arguable that the 17th Amendment -- which changed election of Senators to be by the people of each state rather than by the legislature of each state -- already violated this clause by causing the Senate to cease to represent the states.
https://www.wolframalpha.com/input/?i=population+of+californ... https://www.wolframalpha.com/input/?i=population+of+californ...
I went to American schools in the Canal Zone. I don’t speak Spanish and I always thought of myself as American. When I came to the U.S. to live my expectations about America did not correspond to reality. As time goes on this chasm is increasing. I’ve been in the U.S. for 30 years now. Samoans may end up regretting if they win!
And technically the Canal Zone was always part of Panama proper with the US leasing the land on a perpetual basis while US Samoa is "owned".
https://www.uscis.gov/us-citizenship/citizenship-through-par...
In general, a Child Born Outside the U.S. is a Citizen at Birth when the Child’s Parents Are Married to each other at the Time of Birth IF... Both parents are U.S. citizens at the time of birth, AND... At least one parent lived in the U.S. or its territories prior to the birth
Canal Zone is a US territory.
OP's case is interesting because the petitioner's parents are not citizens.
Those requirements boil down to this:
- One parent must be a citizen.
- That parent needs some connection to the US, measured by how much time they've spent living there.
- If the citizen parent is male, he must prove that the child is related to him.
- If the citizen parent is male, he must swear a binding legal oath to financially support the child.
The rest resolves these questions:
- How much residential connection to the US must citizen parents have, based on the couple's total Americanness? (more Americanness, less time)
- Can we just assume that married men are the fathers of their wives' children? (yes)
- What counts as being "in America"? (government service abroad counts)
My sister in law was born and raised in America. She now lives in the EU and has a child with her wife. Despite gay marriage being legal in the US, her child is currently unable to obtain American citizenship because she was not the biological mother.
You are having the same issues my brother in law is having. You need to live in the US to make the process easier. It actually been a pain to get his wife a work permit because they haven’t lived here in 10 years.
Not sure it's all that simple. Say, for example, he was born in Kenya to American parents. Would that make him a "natural born citizen" eligible to become president?
According to the wikipedia:
> The consensus of early 21st-century constitutional scholars, together with relevant case law, is that natural-born citizens include, subject to exceptions, those born in the United States.
Complicated stuff -- if you're born on a US military base in a Germany vs a hospital next to the base &etc...
Since unincorporated territories are not meant to be thought of as the United States proper, provisions like birthright citizenship don't apply. I don't think all of the relevant claims have been litigated before the Supreme Court. Since the Insular Cases in the early 20th century, the Supreme Court has slowly walked back some of the distinctions. In addition, Congress has expressly granted many rights (such as citizenship, not mere nationality) to Puerto Rico, which is the substantial portion of the territories.
One complication is that, as the Declaration of Independence forcefully points out, the fundamental issue is the right of people to alter their government if they view it as destructive to inalienable, natural rights--and most of the people in these territories actually like the status quo political situation (cf. the several Puerto Rico status referendums which generally all signify a plurality preference for status quo, even if the legal viability of the status quo is questionable).
Now if only we could get citizens to follow suit.
How is that okay? Totally skip all laws and regulations by simply flying a couple weeks prior to the due date and voila! Screw everyone else waiting in line.
source: know people who have done this for each of their four kids.
What law are they breaking or skipping? This is perfectly legal (in fact, backed by the US Constitution) and IMHO one of the great aspects of the US (policy of jus soli).
https://en.m.wikipedia.org/wiki/Jus_soli
Shittier is the second class status for anyone not born in the US. Pretty disgusting.
I’m actually pro free borders. But as it stands this is a weird way of abusing the current system.
[1] https://www.motherjones.com/politics/1994/01/saving-samoans/