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Tuaua v. United States

United States Court of Appeals, District of Columbia Circuit

June 5, 2015


Argued: February 9, 2015.

Appeal from the United States District Court for the District of Columbia. (No. 1:12-cv-01143).

Neil C. Weare argued the cause for appellants. With him on the briefs were Robert J. Katerberg, Murad S. Hussain, Elliott C. Mogul, and Dawn Y. Yamane Hewett.

Jessica Ring Amunson and Erica L. Ross were on the brief for amicus curiae David B. Cohen in support of appellants.

David J. Debold and Molly M. Claflin were on the brief for amici curiae Citizenship Scholars in support of appellants.

Eugene D. Gulland was on the brief for amici curiae Certain Members of Congress and Former Government Officials in support of appellants.

Krim M. Ballentine, filed the brief as amicus curiae in support of appellant.

Wynne P. Kelly, Assistant U.S. Attorney, argued the cause for appellees. With him on the brief were Ronald C. Machen Jr., U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

Michael F. Williams argued the cause and filed the brief for intervenors for appellee American Samoa Government and Congresswoman Aumua Amata.

Paul R.Q. Wolfson, Dina B. Mishra, and Adam I. Klein were on the brief for amici curiae Scholars of Constitutional Law and Legal History in support of neither party.

Before: BROWN, Circuit Judge, and SILBERMAN and SENTELLE, Senior Circuit Judges.


Page 301

Brown, Circuit Judge:

In our constitutional republic, Justice Brandeis observed, the title of citizen is superior to the title of President. Thus, the questions " [w]ho is the citizen[?]" and " what is the meaning of the term?" Aristotle, Politics bk. 3, reprinted in part in Readings In Political Philosophy 55, 61 (Francis W. Coker ed., 1938), are no less than the questions of " who constitutes the sovereign state?" and " what is the meaning of statehood as an association?" We are called upon to resolve one narrow circumstance implicating these weighty inquiries. Appellants are individuals born in the United States territory of American Samoa. Statutorily deemed " non-citizen nationals" at birth, they argue the Fourteenth Amendment's Citizenship Clause affords them citizenship by dint of birthright. They are opposed not merely by the United States but by the democratically elected government of the American Samoan people. We sympathize with Appellants' individual plights, apparently more freighted with duty and sacrifice

Page 302

than benefits and privilege, but the Citizenship Clause is textually ambiguous as to whether " in the United States" encompasses America's unincorporated territories and we hold it " impractical and anomalous," see Reid v. Covert, 354 U.S. 1, 75, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957), to impose citizenship by judicial fiat--where doing so requires us to override the democratic prerogatives of the American Samoan people themselves. The judgment of the district court is affirmed; the Citizenship Clause does not extend birthright citizenship to those born in American Samoa.


The South Pacific islands of American Samoa have been a United States territory since 1900, when the traditional leaders of the Samoan Islands of Tutuila and Aunu'u voluntarily ceded their sovereign authority to the United States Government. See Instrument of Cession by the Chiefs of Tutuila Islands to United States Government, U.S.-Tutuila, Apr. 17, 1900. Today the American Samoan territory is partially self-governed, possessing a popularly elected bicameral legislature and similarly elected governor.[1] Complaint at 13 ¶ 27, Tuaua v. United States, 951 F.Supp.2d 88 (D.D.C. 2013) (No. 12-cv-01143). The territory, however, remains under the ultimate supervision of the Secretary of the Interior. See Exec. Order No. 10,264 (June 29, 1951) (transferring supervisory authority from the Secretary of the Navy to the Secretary of the Interior).

Unlike those born in the United States' other current territorial possessions--who are statutorily deemed American citizens at birth-- section 308(1) of the Immigration and Nationality Act of 1952 designates persons born in American Samoa as non-citizen nationals.[2] See 8 U.S.C. § 1408(1). Below, Appellants challenged section 308(1), as well as State Department policies and practices implementing the statute, see, e.g., 7 FAM § 1125.1(b), on Citizenship Clause grounds and under the Administrative Procedure Act. The district court rejected Appellants' arguments and dismissed the case for failure to state a claim upon which relief can be granted. Tuaua v. United States, 951 F.Supp.2d 88, 94 (D.D.C. 2013); see also Fed.R.Civ.P. 12(b)(6). On appeal Appellants reassert only their constitutional claim. Our review is de novo. Atherton v. D.C. Office of Mayor, 567 F.3d 672, 681, 386 U.S.App.D.C. 144 (D.C. Cir. 2009).


The Citizenship Clause of the Fourteenth Amendment provides that " [a]ll 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." U.S. CONST. amend. XIV, § 1, cl. 1. Both Appellants and the United States government[3] agree the text and structure of the Fourteenth Amendment unambiguously leads to a single inexorable conclusion as to whether ...

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