Like many of us this past week, John Fitisemanu got his ballot in the mail for the 2022 election. But instead of being a symbol of the right and privilege we enjoy as U.S. citizens, for Fitisemanu, it was more like a slap in the face.
That’s because days earlier the U.S. Supreme Court had refused to hear arguments from Fitisemanu’s attorneys that he and other men and women born in American Samoa are entitled to full citizenship and the rights that come with it — including being able to vote.
“I think we were optimistic for getting a better result, the result we were looking for,” Fitisemanu, who has lived in Woods Cross for two decades and is among about 8,400 Samoans living in Utah, told me after the court’s rejection.
For decades, American Samoa has been unique among U.S. territories. In separate agreements signed in 1900 and 1904, the leaders of the islands ceded authority to the United States and, at the time, believed that under the agreements its residents would be considered citizens. It wasn’t until years later they learned that federal leaders in Washington, D.C., did not see it that way.
(Francisco Kjolseth | The Salt Lake Tribune) Robert Gehrke.
Those living in other territories — Puerto Rico, Guam and the U.S. Virgin Islands — have been recognized as citizens by Congress, although they also cannot vote in federal elections. By contrast, American Samoans are considered American nationals.
That means people like Fitisemanu pay their state and federal taxes, but are not allowed to serve on juries or sponsor family members who might be foreign nationals to come to the country. And, even though his U.S.-born children are citizens and attended school in Utah, he could never vote for the board members in his kids’ school district or for state or local leaders.
His passport, like those of other American Samoans, explicitly says he is an American national, not a citizen, meaning they are ineligible for certain jobs. Fitisemanu said that when he was living in Hawaii he applied to be a prison guard, but couldn’t be hired because he was not a citizen.
“Part of the reason I had some questions about this situation is I felt like I was second-class, basically,” Fitisemanu said.
He could have paid a fee and applied to go through the normal naturalization process to become a citizen, but he didn’t feel like he should have to go that route, because in his mind he already is a citizen.
Instead, he joined another Utah couple — Pale and Rosavita Tuli — and the Southern Utah Pacific Islander Coalition, and teamed up with the civil rights group Equally American to sue the federal government, arguing that the citizenship clause of the 14th Amendment to the U.S. Constitution applies to individuals born on American soil anywhere, including the U.S. territories.
The U.S. government resisted, arguing that it would take an act of Congress to grant citizenship. And, in a perhaps surprising twist, the Samoan government also opposed the lawsuit, arguing that there is no consensus among the people of the islands as to whether they want to be United States citizens.
But Fitisemanu won that initial lawsuit when U.S. District Judge Clark Waddoups ruled in 2019 that U.S. territories are, for all intents and purposes, part of the United States and that an 1898 Supreme Court case granting citizenship to a man born in California to Chinese parents should apply equally to those born in U.S. territories.
The next day Fitisemanu registered to vote, hoping he might be able to cast a ballot for the first time in his life.
The victory was short-lived, however. The government appealed and last year a divided panel of judges in the 10th Circuit overturned Waddoups’ ruling, swayed by the argument from the Samoan government that citizenship should not be imposed on people who don’t want it, saying that the decision on whether to grant citizenship should be left to Congress.
Fitisemanu’s attorneys asked the Supreme Court to hear the case on a topic that two justices — Neil Gorsuch and Sonia Sotomayor — had expressed interest in revisiting the “insular cases” governing the territories, but last week the court declined to take the case. The justices did not give an explanation for the rejection.
It was the next day that Fitisemanu’s ballot showed up in the mail.
“It’s the end of this case,” said Neil Weare, the founder and president of Equally American, “but certainly not the end of the issues.”
It’s possible the group could bring another lawsuit in another part of the country, one not in the 10th Circuit, hoping for a more favorable outcome and potentially review by the Supreme Court. Congress could also act, but thus far hasn’t shown much interest in doing so.
“I’m going to continue to fight,” Fitisemanu said, despite the disappointing outcome.
And he should. Because as long as we continue to brand certain Americans born on American soil as less-than-American citizens, we have clearly created a form of — in his words — second-class citizenship that should not be tolerated.
