Court Monitor

No Birthright Citizenship for American Samoa

Birthright citizenship is the notion that anyone automatically becomes an American citizen if he happens to have been born on American soil. Never in American history has that actually been true as a matter of law, yet millions insist that someone can become a U.S. citizen here merely by being born here.

The Fourteenth Amendment begins with this statement: "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." The key phrase is "subject to the jurisdiction thereof," which means that someone born on American soil, to parents subject to another country's jurisdiction, is not an American citizen. The purpose of the Fourteenth Amendment was to free the slaves, not to grant citizenship to illegal aliens.

Many children of foreign diplomats have been born here while their parents were stationed in the United States, and yet those children were never American citizens. They are citizens of the country that their parents are citizens of. Children inherit the citizenship of their parents, not of the place where they happened to have been born.

American Samoa, located in the South Pacific, has been a territory of the United States ever since 1900 when it was voluntarily annexed to our nation. But unlike other American territories, such as Puerto Rico, the people of American Samoa are not American citizens. They are "non-citizen nationals" having allegiance to the American flag, but without the privileges and obligations of citizenship.

Why is that? One reason is that many Samoans do not want to be subject to the strict prohibition in the Fourteenth Amendment against racial discrimination. The ownership of property in Samoa is based on family lineage dating back long before Americans arrived, and those practices continue to this day. Elected representatives of the Samoan people oppose an automatic American citizenship for their residents.

But some Samoans sued to obtain American citizenship. A Supreme Court Justice once described the title of citizen of the United States as a title superior to that of president, and a Supreme Court opinion observed that U.S. citizenship "is one of the most valuable rights in the world today." Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160 (1963).

An unusually conservative panel of the D.C. Circuit, consisting of Janice Brown, Laurence Silberman and David Sentelle, was assigned on appeal. The most conservative of the three, Judge Brown, wrote the opinion with the full support of the other two. Tuaua v. United States, 788 F.3d 300 (D.C. Cir. 2015).

She observed that the phrase in the Fourteenth Amendment "and subject to the jurisdiction thereto" means "completely subject to their political jurisdiction, and owing them direct and immediate allegiance," quoting the U.S. Supreme Court in Elk v. Wilkins, 112 U.S. 94 (1884), which denied birthright citizenship to American Indians born on U.S. soil because they were under the jurisdiction of their Indian tribe. American Indians were granted citizenship only by a Congressional law on June 2, 1924.

The good people of Samoa, through their political representatives, do not want birthright citizenship. Unless and until Congress passes a law making them citizens, the Fourteenth Amendment does not grant them birthright citizenship, the Court held.