Virgin Islanders aren’t the only residents in U.S. territories who feel like second-class citizens, and attorney Neil Weare and the We The People organization are challenging citizenship rights in the District of Columbia U.S. Court of Appeals on behalf of plaintiffs who were born in American Samoa.
The plaintiffs include individuals born in American Samoa who held U.S. passports and served in the U.S. military but were denied jobs and the right to vote because they were not recognized as citizens. The California-based Samoan Federation is also part of the lawsuit.
“No matter where you live, the core rights of Americans should remain the same,” according to Weare, a graduate of Harvard Law School.
Weare, who grew up on Guam, told the Source he initially filed a complaint in July 2012 in the D.C. District Court. The lawsuit named as defendants the United States of America; the U.S. State Department; Hillary Rodham Clinton, then secretary of state; and Janice Jacobs, then assistant secretary of state for Consular Affairs.
The argument in Tuaua v. United States is that the Citizenship Clause of the U.S. Constitution says “all persons born … in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” Federal laws and policies that deny citizenship to people born in American Samoa violate the clause, according to Weare.
The defendants argue that Congress can exclude Americans born in territories as citizens based on the so-called Insular Cases doctrine.
The Insular Cases were a series of Supreme Court decisions handed down in the early 1900s.
The rulings seemed to contradict the Constitution in the area of citizenship for residents of U.S. territories. In at least one case, the justices left the decision of citizenship to Congress after the territories were incorporated.
Weare said he hopes Tuaua v. United States forces the court to rule whether the Constitution trumps Congress.
“The Insular Cases are relics of another era. In any event, they did not decide the issue of citizenship,” Weare said.
There are indications the justices are leaning toward the side of the Constitution, Weare said. In 2008, the Supreme Court concluded “the Constitution grants Congress and the president the power to acquire, dispose of and govern territory but not to decide when and were its terms apply.”
Also in 2008, Sen. John McCain was allowed to run for president even though he was born in a former U.S. territory – the Panama Canal Zone. U.S. Solicitor General Ted Olson said a “birth on soil that is under the sovereignty of the United States, but not within a state,” is considered a “natural born” citizen.
Tuaua v. United States has moved through the D.C. District Court and the D.C. Appeals Court since July 2012. In February 2014, the Appeals Court denied a motion from the federal government to dismiss the case and the suit will progress.
Weare said both sides will file briefs by April 25 arguing their side of the case. After that, the court may ask for more written testimony or a hearing with testifiers. Delegate to Congress Donna M. Christensen has volunteered to testify, Weare said.
Weare isn’t the only one working on civil rights for residents of U.S. possessions. We the People, a nonprofit organization founded by Weare, has 4,500 Facebook followers and more than 1,000 residents of the territories have joined the “movement,” he said.
The organization is led by a board of directors with an advisory board of current and former lawmakers from the territories, including Christensen and former Gov. Charles Turnbull.
One purpose of the organization is to bring national awareness to the citizenship issue. The more people that become engaged, the more Congress will pay attention, Weare thinks.
Since Virgin Islanders will be affected by the outcome of the case, Weare encouraged residents to visit the website www.equalrightsnow.org, where there is information on the current lawsuit, how to join the organization and a survey for residents about voting in the territories.
Other parties invested, in varying degrees, in the issue include around 100 people who participated in a Reconsidering the Insular Cases conference at the Harvard Law School on Feb. 19.
The conference was headlined by First Circuit Judge Juan Torruella, who discussed “The Insular Cases: A Declaration of Their Bankruptcy.” Torruella’s bottom line was that all U.S. citizens are equal according to the Constitution not by laws enacted by Congress.
“The Insular Cases should be soundly rejected because they represent the thinking of a morally bankrupt era in our history that goes against the most basic precept for which this nation stands – the equality before the law of all of its citizenship,” Torruella said in a news release.
Emails and phone calls to Christensen were unanswered. An aide said she has been in meetings for the last two days.
