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Plaskett and Other Insular Leaders Brief Supreme Court in Insular Birthright Citizenship Case

Delegate Stacey Plaskett with an array of current and former congressional delegates and governors from the USVI, Guam and Puerto Rico filed papers this week urging the U.S. Supreme Court to review a court’s decision last year denying birthright citizenship in U.S. territories.

Their friend of the court brief was one of seven filed this week petitioning the Supreme Court to take up the case, which the D.C. Circuit decided last year. If the Supreme Court takes up the case, it could change the way U.S. law treats citizenship in the territories.

The seven briefs point to the dated, race-based arguments in the 1920s-era Insular Cases that allowed the two-tiered citizenship, along with the fact that the Supreme Court itself stated at the time that the status was temporary.

The underlying case has to do with a Samoan national who was denied a job because of his citizenship status. In June of 2015, a three-judge federal appellate court for the Washington, D.C., circuit ruled in Tuaua v. United States that people born in the U.S. territory of American Samoa have no claim to U.S. birthright citizenship under the Citizenship Clause of the 14th Amendment to the U.S. Constitution.

Federal statutes currently classify American Samoans as “noncitizen nationals” of the United States, in contrast to the USVI, where residents are U.S. citizens by statute, but not necessarily by birthright.

Neal Weare, an attorney who has made citizenship and voting rights in the insular territories a personal cause, argued the case before the D.C. Circuit. Weare is president of We the People, a nonprofit that advocates for equal rights and representation in U.S. territories.

Leneuoti Tuaua, the lead plaintiff in the case, was denied the opportunity to pursue a career in law enforcement in California, where citizenship is a job requirement. Tuaua v. United States makes the case that Congress cannot legislate an exception to the Citizenship Clause of the Fourteenth Amendment to withhold citizenship from persons born in U.S. territories.

The territories petitioned to have the full circuit hear the case but were turned down in October.

In February, former U.S. Solicitor General Ted Olson filed a petition for certiorari seeking Supreme Court review of the D.C. Circuit’s decision holding that birthright citizenship is not a “fundamental right” in U.S. territories.

In a statement about her brief, Plaskett said her office has been working with Weare and the We the People Project for some time.

"Although this particular case is about birthright citizenship for American Samoans, it has implications for the equal treatment of the other territories under federal law by virtue of its challenge to the Insular Cases," Plaskett said.

"The Insular Cases today continues to hinder the full enjoyment of America’s democratic and constitutional principles by the residents of the Virgin Islands and other U.S. territories,” Plaskett said.

“Equal representation and protection under the constitution is important because of its implications on the progression of our communities. The inability to vote has a direct correlation to the poverty in our communities. Without equal representation, our voices are muted and our needs are not adequately met," she said.

The brief is signed by Plaskett, former V.I. Delegate Donna Christensen, former V.I. Govs. John deJongh Jr. and Charles Turnbull, Guam Delegate Madeleine Bordallo, former Guam Govs. Joseph Ada, Felix Camacho and Carl Gutierrez, former Puerto Rico Governor Pedro Rosselló and others.

It argues in part that "if birthright citizenship really is something that persons born in the territories enjoy only as a matter of legislative grace, then there is nothing to stop Congress from denying citizenship to persons born in Puerto Rico, Guam, the U.S. Virgin Islands or the Northern Mariana Islands tomorrow."

Because "it is not even clear that Congress could not revoke birthright citizenship of territorial residents who currently enjoy it," the decision "imperils the citizenship of everyone born in the U.S. territories," they argue.

Lead counsel on that brief is Paul Clement, an attorney with extensive experience before the Supreme Court.

The other six briefs were filed by:

– a group of law professors specializing in citizenship;

– a group of scholars of constitutional law and legal history;

– some prominent national Latin and Asian civil rights groups;

– an array of retired judges from U.S. territories;

– a group of international law professors;

– and the Puerto Rican Bar Association of New York.

According to Weare, a decision by the Supreme Court on whether it will take up the case is expected by the end of the term, which ends in June.

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