ST. THOMAS – A federal appeals court ruling that citizenship by birth on U.S. soil is not a “fundamental right” in U.S. territories could have a direct impact for people born in the U.S. Virgin Islands.
“The D.C. Circuit’s opinion should be of concern to all of the over 4 million residents of U.S. territories. It’s not clear what limits the panel would place on Congress’s power to deny not just citizenship, but other constitutional rights as well,” said V.I. Delegate to Congress Stacey Plaskett.
The ruling, in Tuaua v. United States, says that people born in the U.S. territory of American Samoa have no claim to U.S. birthright citizenship under the Citizenship Clause of the Fourteenth Amendment to the U.S. Constitution. Federal statutes currently classify American Samoans as “non-citizen nationals” of the United States.
The three judges issuing the ruling adopted a narrow view of constitutional rights that was first expressed by Supreme Court Justice Henry Brown in one of the Insular Cases, a series of much-criticized decisions from the early 1900s concerning American overseas territories.
The Washington, D.C. Circuit opinion anticipated concerns that the Insular Cases “doctrine rests on anachronistic views of race and imperialism,” and stated that “some aspects of the Insular Cases’ analysis may now be deemed politically incorrect.” Nonetheless, the panel went on to conclude that even after an overseas territory has been sovereign U.S. soil for over a century, Congress has broad power over which constitutional rights apply, including birthright citizenship.
The Tuaua plaintiffs will request that the full D.C. Circuit now rehear the case. That could involve a hearing before the 11 active judges and, if they choose to participate, two senior judges.
“The panel’s reliance on the Insular Cases to deny recognition of citizenship by birth on U.S. soil is directly at odds with recent statements by the Supreme Court, so we are hopeful the decision won’t be the last word,” said civil rights attorney Neil Weare, who argued the case in February and is president of We the People, a non-profit project that advocates for equal rights and representation in U.S. territories.
Earlier this month, Weare spoke before the V.I. Bar Association to outline the case for extending the right to vote in presidential elections to residents of the territory.
Elected representatives of U.S. territories, including Plaskett, have supported the tenets and the issues of the plaintiffs in the case, which could have far-reaching consequences to the more than 4 million U.S. citizens living in Puerto Rico, Guam, the U.S. Virgin Islands and the Northern Mariana Islands.
While people born in these areas are recognized as citizens at birth by a federal statute, if the panel’s decision stands, a future Congress could decide to restrict birthright citizenship. The panel’s narrow view of which rights are “fundamental” in U.S. territories might put other constitutional rights at risk as well, Weare said.
V.I. attorney Semaj Johnson, a co-counsel with the We the People project, said the court panel erred when “they said that the citizenship clause is ambiguous when it comes to unincorporated territories.”
Johnson said the court said it “did not want to impose citizenship by judicial fiat” but he challenges that line of thought. If that is the case, then the same ambiguity should bar territory residents from serving in the military or receiving Social Security, he said.
“That logic may have been fine in 1906, but in 2015 it is unfounded. If you are a United States citizen, then you are entitled to the rights and privileges of citizenship.”
He said one of the strongest arguments against the 1900-era rulings is that “the Insular Cases are inherently racist,” given that the majority of the people in the territories are minorities.
Johnson said he expects the recent panel ruling to be overturned, and that will be the first step towards more progressive court rulings that create the path for change. “This is the beginning,” he said. “The Insular Cases have stood for too long.”
Virgin Islands Senate Majority Leader Sammuel Sanes said “it is a disgrace” for the residents of American Samoa to be considered non-citizens. “That’s totally bogus,” Sanes said. “I served in the military with citizens from American Samoa. They took the same oath that I did. They were willing to give the ultimate sacrifice. It is a slap in the face, demoting somebody as a second- class citizen. It is demoting me, here, willing to defend, and yet I am denied the opportunity to vote. I think it should be rectified.”
Sanes pointed out that the Virgin Islands “has one of the higher statistics of people willing to join the military,” yet people in the territory cannot vote for the president nor vice president. “It is a disgrace. To me it really is an insult.”
– Contact Jonathan Austin at 714-9104 or email email@example.com.