America’s top lawyers filed papers with the U.S. Supreme Court this week opposing changes to rules that keep people born in U.S. territories from the same birthright citizenship as people born on the mainland. The USVI’s delegate to Congress called the rules racist.
Elizabeth Prelogar, the U.S. solicitor general, cited a series of early 20th century court decisions that bar people born in U.S. territories from the same rights as in the 50 states. Stacey Plaskett, the Virgin Islands’ representative in Congress, was the co-sponsor of a House of Representatives resolution condemning the so-called Insular Cases.
“While I am tremendously disappointed to see the solicitor general and attorney general continue defending the racist and colonial Insular Cases, I remain hopeful that the Supreme Court will not shirk away from reckoning with how its decisions in these cases contradict America’s most foundational principles,” Plaskett said in a written statement.
She has urged President Joe Biden to denounce and stop defending the Insular Cases.
The U.S. Constitution says people born on the U.S. mainland are automatically U.S. citizens. People born in Puerto Rico and the USVI are U.S. citizens by an act of Congress — a law that could be changed or eliminated at any time. That act does not cover American Samoa, a U.S. territory since 1900. American Samoans must apply for naturalized citizenship if they wish to have passports not emblazoned with big block letters stating: “The bearer is a United States National and Not a United States Citizen.”
John Fitisemanu, an American Samoan now living in Utah, sued in 2018 for full rights. Fitisemanu’s argument was that the 14th Amendment’s Citizenship Clause covered all Americans, not just those on the mainland. The clause reads: “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.”
Biden has continued to support the position President Donald Trump’s administration took. Prelogar’s filing with the U.S. Supreme Court this week seemed to further alienate Americans living outside the 50 states.
“That provision plainly uses the term ‘United States’ in a sense that excludes the territories, which do not participate in presidential elections,” Prelogar wrote. She cited special tax provisions for Puerto Rico as evidence that the territories were not held to the same standards as states and thus rightly excluded from equal rights.
The Pacific island territory’s Congressional Delegate, Aumua Amata, filed a brief with the Supreme Court Monday agreeing with the White House’s position, saying the relative independence from colonial powers is a point of pride for Samoans.
“Although the American Samoan people are proud of their relationship with the United States, they have never come to a consensus on whether they should ask Congress to grant them citizenship at birth—and in keeping with its historical practice for over a century, Congress has refrained from imposing that status on the American Samoan people without their consent,” Amata wrote to the court.
Equal rights advocates say the fight against the territories’ full inclusion is based on white supremacy, not national pride.
Charles Ala’ilima, one of the attorneys representing Fitisemanu, said American Samoans are treated as second-class citizens.
“If our leaders today don’t want to be a part of the United States, or if they want a status similar to Micronesia, they should say so. But so long as the U.S. flag flies overhead, our people have a constitutional right to be recognized as citizens that Congress has no power to deny,” Ala’ilima said in a written statement.
The Washington, D.C.-based non-profit Equally American also represents Fitisemanu. Its president, Neil Weare, said the Insular Cases are not just wrongly decided but set up racist structures based on white supremacy, not equality.
“It is shocking that the Biden-Harris administration and the solicitor general continue to breathe life into the Insular Cases, which were grounded in a vision of white supremacy that has no place in our society, much less briefs filed by the U.S. Justice Department,” Weare said in a written statement.
The century-old legal opinions create a “separate and unequal” system for the 3.6 million residents of U.S. territories – “98 percent of whom are people of color,” Weare said.