In Fitisemanu v. United States, the Tenth Circuit Court of Appeals ruled in June 2021 that the Fourteenth Amendment does not automatically grant U.S. citizenship to people born in American Samoa, and the Supreme Court declined to hear the case in October 2022. The decision left in place a federal statute that treats those born in the territory as U.S. nationals rather than citizens, and it kept intact a century-old line of Supreme Court precedent that gives Congress broad control over which constitutional rights reach unincorporated territories.
The Statute at Issue
Federal law draws a sharp line between citizenship and nationality. Under 8 U.S.C. § 1408, anyone born in an “outlying possession of the United States” is a national, but not a citizen, at birth. The statute defines those outlying possessions as American Samoa and Swains Island, and only those two places.
Every other inhabited U.S. territory works differently. People born in Puerto Rico, Guam, the U.S. Virgin Islands, and the Northern Mariana Islands are U.S. citizens at birth by separate acts of Congress. American Samoa is the sole territory whose people receive nationality without citizenship. The plaintiffs in Fitisemanu, three people born in American Samoa and living in Utah, argued that the Constitution itself overrides the statute and confers citizenship on everyone born on U.S. soil.
The Constitutional Question
The Citizenship Clause of the Fourteenth Amendment says: “All 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.” The case turned on whether “in the United States” includes American Samoa.
The plaintiffs said yes. American Samoa is U.S. sovereign territory, people born there are born on U.S. soil, and the Clause makes them citizens without any need for congressional action. The federal government said no, pointing to a line of Supreme Court decisions that has treated unincorporated territories as something other than fully “in the United States” for constitutional purposes.
The Insular Cases Framework
That government position rests on the Insular Cases, a series of Supreme Court decisions beginning in 1901. The most significant, Downes v. Bidwell, held that Puerto Rico “belonged to” but was “not a part of” the United States for purposes of the constitutional requirement of tax uniformity. Later decisions, including Dorr v. United States, extended the reasoning to hold that rights like trial by jury did not automatically apply in territories the Court labeled unincorporated.
The framework distinguishes incorporated territories, where the full Constitution applies and statehood is expected, from unincorporated territories, where only rights the Court has called “fundamental” apply automatically. Everything else is left to Congress to extend or withhold.
The Insular Cases have drawn sharp criticism from sitting justices. Concurring in United States v. Vaello Madero in 2022, Justice Neil Gorsuch wrote that the decisions “have no foundation in the Constitution and rest instead on racial stereotypes,” and he said he hoped the Court would “squarely overrule them.” Justice Sonia Sotomayor has voiced similar concerns. The Court has not taken a case that would require it to formally do so.
Why American Samoa’s Government Opposed Citizenship
An unusual feature of the case was that the American Samoan government intervened on the side of the federal government, opposing the plaintiffs who sought citizenship for people from the territory. The territory’s elected leaders argued that automatic citizenship could threaten traditional practices and political autonomy.
Their central concern was the fa’a Samoa, the traditional Samoan way of life, which includes communal land ownership and governance by matai, the hereditary chiefs. American Samoan law restricts the sale of most land to people with at least one-half Samoan blood. Communal family lands cannot be sold without the governor’s written approval, and even freehold land generally cannot go to someone with less than half native blood unless they were born in American Samoa, descend from a Samoan family, and have committed to living there permanently.
If the full Fourteenth Amendment applied in the territory, those blood-based restrictions would likely face Equal Protection challenges they could not survive. The Tenth Circuit observed that “the constitutional issues that would arise in the context of American Samoa’s unique culture and social structure would be unusual, if not entirely novel.”
How the Courts Ruled
The U.S. District Court for the District of Utah initially sided with the plaintiffs, declaring them citizens and holding that the Citizenship Clause reaches American Samoa. It relied on historical common law principles and a Supreme Court citizenship decision from 1898 that predated the Insular Cases.
The Tenth Circuit reversed in June 2021. The panel concluded that “neither constitutional text nor Supreme Court precedent demands” the district court’s reading of the Citizenship Clause. It held that the Insular Cases framework still controls, that Congress has authority to determine citizenship status in unincorporated territories, and that a judicial order imposing citizenship could undermine American Samoa’s cultural autonomy, particularly when the territory’s own government opposed the change. Any shift, the court said, should come from Congress.
The plaintiffs asked the Supreme Court to review the decision. On October 17, 2022, the Court denied certiorari without comment. That denial does not mean the justices endorsed the Tenth Circuit’s reasoning, only that fewer than four voted to take the case. The constitutional question remains formally open.
What the Ruling Means for American Samoans Today
Because Fitisemanu left the statute intact, people born in American Samoa remain U.S. nationals under 8 U.S.C. § 1408. They can live and work anywhere in the United States without a visa or work permit, and they carry U.S. passports. Those passports include Endorsement Code 09, which reads: “THE BEARER IS A UNITED STATES NATIONAL AND NOT A UNITED STATES CITIZEN.”
The status carries real limits. U.S. nationals cannot vote in federal elections, and most states require citizenship to vote in state and local elections. They cannot hold elected federal office, and many appointed federal positions are closed to them. They cannot serve on federal juries, and most states impose the same rule for state courts. Executive Order 12968 limits eligibility for security clearances to U.S. citizens, with only narrow exceptions, which effectively closes off much defense and intelligence work.
Naturalization as the Current Path
An American Samoan who wants full citizenship must naturalize. The process is the same one available to immigrants, with one accommodation written into 8 U.S.C. § 1436: a non-citizen national who owes permanent allegiance to the United States can naturalize after becoming a resident of any state, and time spent living in American Samoa or another outlying possession counts toward the residence and physical presence requirements. Without that provision, someone who spent a lifetime in the territory would have to restart the clock after moving to a state.
The general requirements still apply. An applicant must be at least 18, have been a lawful permanent resident for five years, meet continuous residence and physical presence tests, demonstrate good moral character, and pass English and civics exams. The filing fee for Form N-400 is $710 online or $760 on paper, with a reduced $380 fee available for applicants at or below 400 percent of the federal poverty guidelines and full fee waivers for those who qualify.
What Could Still Change
Fitisemanu closed the immediate litigation, but the underlying debate continues. Justice Gorsuch’s Vaello Madero concurrence called the Insular Cases “shameful” and rooted in “the theories of social Darwinists.” As recently as November 2025, Gorsuch and Justice Clarence Thomas questioned whether the Constitution grants Congress the sweeping power over territories that lower courts have long assumed.
Congress could also act on its own. Bills to extend birthright citizenship to American Samoa have been introduced in past sessions, though none has advanced to a vote. Any legislative fix would have to reckon with the same tension the case exposed: the desire of some American Samoans for full citizenship, and the concern of others, including the territory’s government, that citizenship could open longstanding cultural protections to constitutional challenge.