Supreme Court Declines to Hear Constitutional Challenge to Citizenship Law

Written By: Natalie Bravo 

On October 17, the Supreme Court declined a petition to review Fitisemanu v. United States, a case involving three individuals born in American Samoa seeking U.S. citizenship as a birthright under the Fourteenth Amendment. In declining review, the Court passed on an opportunity to reconsider the Insular Cases, a string of century-old Supreme Court decisions widely seen as rooted in racist, colonialist, and imperialist ideas.

The Insular Cases and Citizenship in Unincorporated Territories
The Insular Cases were decided in the early 1900s following the Spanish-American War and Spain’s cessation of several island territories to the U.S. During this time of territorial expansion, the Insular Cases answered questions about how the U.S. should govern territories and how the Constitution should apply.

The Insular Cases stand for the idea that contiguous, incorporated territories (which were on the path to statehood at the time) are distinct from distant and unincorporated  territories (such as Puerto Rico). The Court extended certain “fundamental” rights to the unincorporated island territories but worried that their different races, habits, laws, cultures, and economies made them “utterly unfit” for citizenship and other non-fundamental rights. Under the Insular framework, those rights can only be extended by Congress based on the particular circumstances and practical necessities. This precedent is widely criticized for its racist views of native people as “savages” and “uncivilized,” and for its support of colonial rule and exploitation. But it remains good law and the foundation for Congress’ broad powers governing unincorporated territories.

The U.S. currently has five unincorporated territories—that is, five that are regularly inhabited—for which Congress determines citizenship. Persons born in Puerto Rico, for example, are statutorily deemed U.S. citizens, while persons born in American Samoa are statutorily U.S. nationals. Nationals have U.S. passports and can live and work in the U.S., but are not afforded certain rights, such as holding state or federal office, voting while in the U.S., or serving as a military officer (despite American Samoa’s high enlistment rate). 

Fitisemanu v. United States: Does the Citizenship Clause Apply to Unincorporated Territories?
John Fitisemanu, Pale Tuli, and Rosavita Tuli were born in American Samoa and later moved to Utah, where nationals also cannot be police officers (but permanent residents may). In 2018, they challenged the constitutionality of the statute that declares them non-citizen nationals. The Citizenship Clause of the Fourteenth Amendment states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States…” Mr. Fitisemanu and the Tulis assert that American Samoa is “in the United States” and “subject to the jurisdiction thereof.” Therefore, as the Citizenship Clause prescribes, persons born in American Samoa are entitled to birthright citizenship.

The U.S. District Court for the District of Utah agreed. The court based its decision on historical common law and an 1898 citizenship case that pre-dates the Insular Cases. It deemed the Insular Cases to be less applicable precedent in this instance.

The U.S. Government appealed, and the U.S. Court of Appeals for the Tenth Circuit reversed. The Tenth Circuit held that although the purpose and reasoning of the Insular Cases is disreputable, it remains good law and the most applicable framework for the case. Critical to the Tenth Circuit’s ruling was the American Samoa government’s support for the denial of birthright citizenship. It asserted that imposing citizenship (which does not enjoy popular support locally) by judicial fiat would be “against its will” and have “unintended and harmful effects on American Samoan Culture” and their traditional way of life, Fa`a-Samoa. The matter was for the people to decide, not the courts. The Tenth Circuit agreed. It “repurposed” the Insular framework to preserve the dignity, autonomy, and preferences of American Samoa by denying Fourteenth Amendment birthright citizenship and leaving the decision in the hands of Congress.

Petition for Supreme Court Review Declined
Despite some repurposing, courts and the legal profession continue calls for the Insular Cases to be overturned. In August 2022, the American Bar passed a resolution opposing the Insular Cases and calling on Congress to extend rights to territories. Earlier this year, the Supreme Court decided in United States v. Vaello-Madero that exclusion of Puerto Rico residents from certain federal benefits does not violate the Fifth Amendment equal protection guarantee. Although the Insular Cases do not feature in the majority opinion (because the parties do not dispute that equal protection is a fundamental right that applies in the territories), Justice Gorsuch (concurring) strongly states that the Insular Cases should be overturned and their reckoning is “long overdue.”

Because Fitisemanu involves a dispute over application of a non-fundamental right (citizenship) in unincorporated territories, this may have been an opportunity for that reckoning. However, the Supreme Court denied the petition for certiorari in October 2022 without explanation or dissent. 

Looking Forward
If and when the Supreme Court overturns the Insular Cases, it will be an important and symbolic step in correcting discriminatory jurisprudence. But such a move does not guarantee any particular outcome for the territories. There are five territories each with its own unique views and wishes, and legal, economic, and cultural ties to the U.S.; there will continue to be difficult questions that arise. Moreover, the Constitution is intentionally and notoriously vague. It is silent on what, for example, in the Unites States, citizen, and territory mean. Overturning the Insular Cases does not ascertain any particular interpretation of the Constitution in its place.

In his Vaello-Madero concurrence, Justice Gorsuch calls for the Insular framework’s baseless distinctions between fundamental and non-fundamental rights and between incorporated and unincorporated territories to be replaced with more legally sound tools. He cites Chief Circuit Judge Tymkovich’s concurring opinion in Fitisemanu as an example. In the concurrence, he draws on the Constitution’s text and historical practice (not the Insular Cases) to hold that birthright citizenship does not extend to the territories. At least in this instance and based on this concurrence, an overturning of the Insular framework may not have led to a different result for Mr. Fitisemanu and the Tulis. But that’s not to discount the meaning that overturning the Insular framework may have for communities defined and affected by its unjust views for over a century.


8 U.S.C.S. § 1408 (LexisNexis).

American Bar Association, Resolution 404, 2022 Annual Meeting. 

Court Rejects Appeal to Give American Samoans Citizenship, Associated Press (Oct. 18, 2022).

Docket for 21-1394, U.S. Supreme Court.

Downes v. Bidwell, 182 U.S. 244 (1901).

Fitisemanu v. United States, 426 F. Supp. 3d 1155 (D. Utah 2019).

Fitisemanu v. United States, 1 F.4th 862 (10th Cir. 2021).

United States v. Vaello-Madero, 142 S. Ct. 1539 (2022).