Neither Within Nor Without: The Curious Case of U.S. Citizenship in American Samoa and the Insular Cases

Abstract

<p>This Article considers the problematic notion of citizenship rights among colonized Pacific Island Peoples since the nineteenth century. In particular, this Article reviews these rights for American Samoans in light of the recent Tenth Circuit Court of Appeals decision <i>Fitisemanu v. United States.</i> In <i>Fitisemanu</i>, the Tenth Circuit, relying on a repurposed notion of the Insular Cases, denied American citizenship rights to native born American Samoans despite the guarantees extended to individuals "born or naturalized in the United States" under the Fourteenth Amendment of the U.S. Constitution. The Article argues that this decision inappropriately narrowed the application of the Fourteenth Amendment with its extended application of the Insular Cases' fact-based "impractical and anomalous" inquiry to conclude the federal government's efforts to provide local government and <i>fa'a Samoa</i> was in effect a recognition of American Samoa's right of self-determination such that the objections of the territorial government to these citizenship rights militated against the recognition of citizenship. In the process of this discussion, this Article considers how substantially similar issues regarding New Zealand and British citizenship were implicated in the context of Western Samoa in <i>Lesa v. Attorney General of New Zealand.</i> The circumstances surrounding these cases involve similar legal and policy arguments which have perpetuated the "subject" status of colonized peoples and the initial denial of equality and citizenship rights. This underscores the historical resistance of colonial states to extend full membership rights to their colonized subjects. We contend that the effect of the Insular Cases' framework, despite claims to the contrary, has not protected Indigenous culture from American cultural and constitutional hegemony but continues to deny full legal membership into the political community that enjoys full sovereignty over the land of their birth.</p>