The Supreme Court on Monday declined to take up a case about citizenship rights for residents of American Samoa that advocates said should be used to overturn a series of century-old precedents widely deemed racist.
Supporters of those in U.S. territories and civil rights groups urged the court to take up Fitisemanu v. U.S., in part to reexamine a series of rulings called the Insular Cases.
Last term, justices at both ends of the court’s ideological spectrum — Sonia Sotomayor on the left and Neil M. Gorsuch on the right — said the rulings were an embarrassment because of the racist language and imperialist sentiment employed to find that residents of some U.S. territories are not entitled to full constitutional protection.
“The Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes,” Gorsuch wrote in April in a concurring opinion. He added that “the time has come to recognize that the Insular Cases rest on a rotten foundation. And I hope the day comes soon when the Court squarely overrules them.”
Gorsuch seemed to have in mind Fitisemanu. The U.S. Court of Appeals for the 10th Circuit upheld a federal law that those born in American Samoa are U.S. nationals but not U.S. citizens. It came in a challenge from three people born in the archipelago but now living in Utah.
There was no indication from the court’s routine rejection of the petition that Gorsuch or Sotomayor objected to the decision.
“The Supreme Court’s refusal to reconsider the Insular Cases today continues to reflect that ‘Equal Justice Under Law’ does not mean the same thing for the 3.6 million residents of U.S. territories as it does for everyone else,” Neil Weare, president and founder of Equally American, the group pressing the case, said in a statement.
The Biden administration told the Supreme Court in a brief that the appeals court had been right to find that Congress should make citizenship decisions about those born in territories, and the Samoa case was not the proper one to question the Insular Cases.
For one thing, there is not consensus on citizenship among the territory’s approximately 50,000 residents.
Its political leadership and delegate to Congress filed a brief saying the issue should be negotiated through the political process.
“For three thousand years, on an archipelago seven thousand miles from this Court, the American Samoan people have preserved fa’a Samoa — the traditional Samoan way of life, weaving together countless traditional cultural, historical, and religious practices into a vibrant pattern found nowhere else in the world,” their brief to the court said. “The American Samoan people have kept fa’a Samoa alive in part by preserving their unique political status.”
The challengers and a group that has worked for birthright citizenship for those born in territories said in their request to the court that those born in American Samoa are labeled “second-class by the U.S. government.”
Those who move to the states, “despite being taxpayers who contribute to their communities, are unable to vote,” serve on juries or run for state and federal office, the petition says.
Despite a high percentage of residents serving in the military, it continues, “In effect, they are citizens of nowhere.”
The American Samoan challengers noted they were seeking to overturn rulings that began in 1901 with one justice saying there should be different rules for “alien races, differing from us,” and expressing concern over “savages” becoming “citizens of the United States.”
“It’s a punch in the gut for the Justices to leave in place a ruling that says I am not equal to other Americans simply because I was born in a U.S. territory,” the lead plaintiff, John Fitisemanu, said in a statement. “I was born on U.S. soil, have a U.S. passport, and pay my taxes like everyone else. But because of a discriminatory federal law, I am not recognized as a U.S. citizen.”
At issue was how to interpret the Constitution’s 14th Amendment guarantee that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
There is no split among appellate courts that overseas territories are not “in the United States,” the Biden administration said, and it is up to Congress to award birthright citizenship, as it has done in Puerto Rico, Guam and elsewhere.
“The government in no way relies on the indefensible and discredited aspects of the Insular Cases’ reasoning and rhetoric,” Solicitor General Elizabeth B. Prelogar wrote, so “this case would be an unsuitable vehicle for reexamining those cases.”