Leneuoti Tuaua and five other plaintiffs who are challenging federal laws that deny U.S. citizenship to people born in American Samoa will have their day in court, now that the D.C. Circuit has denied the Government’s request to summarily affirm a district judge’s earlier dismissal of the case.

The challenged federal laws label Mr. Tuaua and others born in American Samoa as “nationals, but not citizens, of the United States,” meaning they are Americans, just not citizens. The inferior status of “non-citizen U.S. national” – which today is limited to people born in American Samoa – can impact voting rights, employment opportunities, military service, immigration sponsorship, and more. American Samoa, which is located in the South Pacific, has been part of the United States for more than a century. It has among the highest rates of U.S. military service of any U.S. jurisdiction, with a casualty rate in Iraq and Afghanistan more than seven times the national average.

“As a proud American born on U.S. soil, I believe that citizenship is our constitutional right. I do not ever want my children to have to think they are second-class because the federal government denies them this right. I look forward to having my day in court before the D.C. Circuit,” said Leneuoti Tuaua, lead plaintiff in Tuaua v. United States, who lives in American Samoa and is a retired Marshall for the American Samoa High Court.

“In California and other states, thousands of Americans are denied the right to vote in state and federal elections simply because they were born in American Samoa. This decision by the D.C. Circuit is an important step towards recognizing that this is not only wrong, it is unconstitutional. In the 21st Century, there shouldn’t be any second-class Americans,” said Loa Pele Faletogo, President of the Samoan Federation of America, a social services organization based in Los Angeles.

D.C. Circuit Judges David Tatel, Janice Rogers Brown, and Cornelia Pillard ordered today that the Government’s motion for summary affirmance be denied, writing that “[t]he merits of the parties’ positions are not so clear as to warrant summary action.” The Government had argued that “binding case law” supported rejecting the plaintiffs’ claims, and had cited a series of controversial Supreme Court decisions from the early 1900s known as the Insular Cases. But even the district judge who dismissed the plaintiffs’ lawsuit nonetheless acknowledged that “none of the Insular Cases directly addressed the Citizenship Clause.” In addition, First Circuit Judge Juan Torruella and others have drawn comparisons between the Insular Cases and Plessy v. Ferguson, which was decided just a few years earlier, and have criticized the Insular Cases as establishing a “separate and unequal” status for residents of U.S. territories.

“Given the Supreme Court’s recent skepticism of relying on the Insular Cases to deny constitutional rights in U.S. territories, I am pleased the D.C. Circuit rejected the Government’s invitation to breathe new life into these controversial Plessy-era decisions,” said Neil Weare, lead counsel in Tuaua and President of We the People Project, an organization that works to achieve equal rights for residents of U.S. territories and the District of Columbia.

In 2008, the Supreme Court in Boumediene v. Bush explained that “[i]t may well be that over time the ties between the United States and any of its unincorporated Territories strengthen in ways that are of constitutional significance,” citing approvingly to Justice William Brennan’s view in an earlier case that the Insular Cases should not be relied upon in order to deny constitutional rights in U.S. territories today. In Boumediene, the Court went on to say that “[t]he Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply.” The importance of Boumediene and the Insular Cases today is being taken up later this month at a Harvard Law School conference entitled “Reconsidering the Insular Cases” – where Judge Torruella will be providing the Keynote Address.

“The door is now open for the D.C. Circuit to recognize that the Constitution’s guarantee of citizenship by birth on U.S. soil means the same in American Samoa as it does anywhere else in the United States. There is certainly a growing cross-ideological consensus that this is the case,” Weare said.

In 2008, former U.S. Solicitor General Ted Olson and Harvard Law Professor Lawrence Tribe explained in a joint memo examining the eligibility of John McCain to run for President that “birth on soil that is under the sovereignty of the United States, but not within a State” satisfies the requirement for being a “‘natural born’ citizen,” in light of “the well-established principle that ‘natural born’ citizenship includes birth within the territory and allegiance of the United States.” In 1995, former U.S. Solicitor General Walter Dellinger wrote that “[t]hroughout this country’s history, the fundamental legal principle governing citizenship has been that birth within the territorial limits of the United States confers United States citizenship.” Former Texas Solicitor General James Ho echoed this view in the Heritage Guide to the Constitution: “Under the longstanding English common-law principle of jus soli, persons born within the territory of the sovereign (other than children of enemy aliens or foreign diplomats) are citizens from birth.”

It is expected that the D.C. Circuit will issue a scheduling order in the coming weeks, with briefing to take place over the next several months and an oral argument possible this summer.

Serving as co-counsel in Tuaua is Arnold & Porter LLP, an international law firm, and Charles V. Ala’ilima, a prominent American Samoan attorney.

Case materials in Tuaua, including the D.C. Circuits order and the District Court’s decision below, are available here. More information about the Tuaua plaintiffs is available here.