Sunday, June 30, 2013

Tuaua v. United States

Some of the local news around the recent decision in Tuaua v. United States.

 The decision is the expected one. Guam and the other insular territories are trapped in a maze that has been created by the United States over the past century. It would take a judge or a court that is heavily invested in justice and truly righting the wrongs of history to make a decision that didn't just reinforce the colonial power of the United States in terms of the The Insular Cases.

But the tricky part about any challenge to the Insular Cases and American power in general is that even if you win, you may simply be reinforcing said American power and colonial control. If we argue that the place of the territories in relation to the United States is a maze, then even if you win a challenge you may simply be accepting your place in the maze. The problem with the Insular Cases in an international sense or in an objective sense is not that the principles of the United States were not lived up to in the withholding of American rights and equality. The problem is that the places that were taken were deprived of any inherent rights and were set on a course where their rights, their lands and their destinies belonged to the United States.

Fixing this problem does not mean providing full citizenship or equality. This is a possible solution, but one that is easy since it doesn't challenge the basis for colonization, but just continues the project in a friendlier and nicer way. Fixing the problem means that you allow those places the right to self-determination and decolonization. It means that you give me the chance to seek another destiny should they wish it. They can choose to remain in the maze and remodel it or they can choose to leave. But unless you acknowledge and do something to address that colonial sin and what it truly did, you haven't come anywhere close to justice.


Federal case in nation's capitol has impacts on Guam

Posted: Jun 28, 2013 5:00 PM Updated: Jun 28, 2013 6:22 PM
by Ken Quintanilla

Guam - Could Congress turn birthright citizenship on and off for Guam whenever it chooses? That's the question raised with a recent District Court ruling that there is no Constitutional right to citizenship in U.S. territories.

"The District Court's conclusion that congress can turn the right to birthright citizenship on and off in U.S. territories is a disserving one that runs counter to the clear text in history of the constitution itself," said former Guam resident and civil rights attorney Neil Weare is referring to a federal judge's decision concluding that "citizenship is not guaranteed to people born in unincorporated territories."
The decision was made in Washington, DC District Court in the federal case of Tuaua V. United States where five individuals born in American Samoa were fighting their claim that the constitution guarantees people born in U.S. territories the right to U.S. citizenship by birth. Weare is the lead counsel on the case.

Weare says federal law currently labels these individuals with the subordinate status of non-citizen nationals - a status similar to people born in Guam prior to the Organic Act. "As a result, they're treated different from other Americans, if they move to other states they can't vote, they can't obtain certain jobs and face other restrictions that wouldn't have if they were recognized as citizens like everyone else," he explained.

So what does this mean here at home? "And what it means for Guam is under the judge of the logic congress tomorrow can change federal statute and hence forward people on Guam could not be recognized as citizens and that's the kind of power the 14th Amendment was meant to take away from Congress," Weare said.

Former senator Hope Cristobal meanwhile says she always understood that citizenship was statutorily granted by Congress, saying, "Remember, the whole Government of Guam was created by Congress and we knew it was a penned in citizenship and just as quickly they can un-pen it or erase it."

She says the issue really should be more about equity rather than equality adding it would take a major act of Congress for this to happen. "And I would imagine there would be an uproar and when that time comes we'll be ready to stand up to that kind of an action, an adverse action by Congress," she said.

Weare meanwhile says this is only the beginning of the legal process, adding in these types of complicated constitutional cases the decision is ultimately decided on appeal- something he'll be taking up. "But there will be more opportunity on appeals to present these clear Constitutional arguments to the Circuit Court and we look forward to having these arguments at this point," he said.
Weare adds the judge in the ruling had the opportunity to turn the pages on the insular cases but instead relied on them for his decision. Vice Speaker B.J. Cruz meanwhile says he's disappointed in the District Court, saying this provides Weare the opportunity to take it up on appeal as he believes the U.S. Supreme Court needs to address this and correct the "racist decisions" that were issued in the 1920s with the insular cases. He adds the insular cases are "insulting" and "needs to just be put to bed completely once and for all."


Federal Court Concludes There Is No Constitutional Right to Citizenship in U.S. Territories

Guam - The U.S. District Court of the District of Columbia has dismissed a lawsuit filed by 5 people born in American Samoa who sought U.S. citizenship.
U.S. District Court Judge Richard Leon dismissed the suit concluding: "To date, Congress has not seen fit to bestow birthright citizenship upon American Samoa, and in accordance with the law, this Court must and will respect that choice."

Judge Leon points out that the courts have treated territorial citizenship "as a statutory, and not a constitutional, right ... In the unincorporated territories of Puerto Rico, Guam, the U.S. Virgin Islands, and the Northern Mariana Islands, birthright citizenship was conferred upon their inhabitants by various statutes many years after the United States acquired them. If the Citizenship Clause guaranteed birthright citizenship in unincorporated territories, these statutes would have been unnecessary."
American Samoa is the only remaining U.S. territory whose inhabitants are labeled as  “non-citizen national.” In all the other territories, Congress has passed a federal statute extending birthright citizenship.  But the decision still has ramifications for Guam and the other Territories.
In an email to PNC News,  Attorney Neil Weare,  President of the "We the People Project", says the decision means that "there is no constitutional right to citizenship in U.S. territories," and that "Congress could turn birthright citizenship on and off in Guam, if it chose to."

Weare says the decision will be appealed and  “on appeal, there will be another opportunity to place the Constitution’s plain text above the Insular Cases’ misguided dicta.”

 READ the release from Neil Weare of Equal Rights Now below:

For Immediate Release: June 27, 2013

Federal District Court’s conclusion that “citizenship is not guaranteed to people born in unincorporated territories” demonstrates the anachronism of the Insular Cases
Washington, D.C. – Leneuoti Tuaua and four other plaintiffs in the federal case of Tuaua v. United States, all of whom were born in the U.S. territory of American Samoa, must wait to be recognized as U.S. citizens after the D.C. District Court dismissed their claim that the Constitution guarantees people born in U.S. territories the right to U.S. citizenship by birth. Federal law currently labels them with the subordinate status of “non-citizen national,” meaning that even though they are Americans who owe allegiance to the United States, they are required to naturalize in order to be recognized as citizens.

In a decision issued late yesterday, the District Court relied on the Insular Cases to conclude that “citizenship is not guaranteed to people born in unincorporated territories.” While recognizing that “none of the Insular Cases directly addressed the Citizenship Clause,” the court nonetheless relied on dicta in these Plessy-era decisions to reject the idea that “citizenship is a fundamental right” for people born in U.S. territories. In explained its decision, the Court cited a single Justice's infamous dicta from the 1901 case Downes v. Bidwell that the government was justified in denying citizenship to the inhabitants of overseas territories because of how “foreign they may be to our habits, traditions, and modes of life.”

“The result of yesterday’s decision demonstrates how anachronistic the Insular Cases are as applied to U.S. territories that have now been a part of the United States for more than a century, something the Supreme Court recognized in its 2008 decision in Boumediene v. Bush,” Neil Weare, President of We the People Project, said.

In Boumediene, the Supreme Court observed that “[i]t may well be that over time the ties between the United States and any of its unincorporated Territories strengthen in ways of constitutional significance.” The Supreme Court went on to cite a prior observation that “[w]hatever the validity of the [Insular Cases] in the particular historical context in which they were decided, those cases are clearly not authority for questioning the application [of the bill of rights in current U.S. territories.]”
“First Circuit Judge Juan Torruella has analogized the Insular Cases to Plessy v. Ferguson, criticizing them as establishing a doctrine of ‘separate and unequal status’ for the inhabitants of U.S. territories. The District Court’s decision yesterday was a missed opportunity to turn the page.” Weare added. “Constitutional rights should not be treated as mere privileges granted by Congress.”
American Samoa is the only remaining U.S. territory whose inhabitants are labeled with the subordinate status of “non-citizen national.” In each of the other territories, Congress has passed a federal statute extending birthright citizenship. Plaintiffs, three of whom are decorated veterans, argued that it is the Constitution, not Congress, that determines whether someone born within the territorial limits of the United States is a U.S. citizen. The District Court rejected that argument, concluding they are not citizens because “Congress has not seen fit to bestow birthright citizenship upon American Samoa.”

“The idea embraced by the District Court, that Congress can turn birthright citizenship on and off in overseas U.S. territories, is as troubling as it is contrary to our basic constitutional values. We are disappointed that the District Court brushed aside the words of the Fourteenth Amendment’s authors as ‘stray comments’ and failed to seriously consider statements made by the Supreme Court soon after the amendment’s ratification.”

Plaintiffs had argued that the text and history of the Citizenship Clause reflect the universal understanding in 1868, when the Fourteenth Amendment was ratified, that the guarantee of birthright citizenship extended throughout the United States, including U.S. territories. Senator Lyman Trumbull, who authored the Civil Rights Act of 1866 upon which section 1 of the Fourteenth Amendment was based, stated during the debates over the Citizenship Clause that “the first section [of the Fourteenth Amendment] refers to persons everywhere, whether in the States or in the Territories or in the District of Columbia.” Four years later, the Supreme Court in the Slaughterhouse Cases confirmed that the Citizenship Clause “put[] to rest” the notion that “[t]hose . . . who had been born and resided always in the District of Columbia or in the Territories, though within the United States, were not citizens.”

“On appeal, there will be another opportunity to place the Constitution’s plain text above the Insular Cases’ misguided dicta,” Weare added.

Attorney Neil Weare, President and Founder of We the People Project, is lead counsel in Tuaua v. United States; serving as co-counsel is Arnold & Porter LLP, an international law firm, American Samoan Attorney Charles V. Ala’ilima, and Constitutional Accountability Center, a think tank based in Washington, D.C., visit

We the People Project works to achieve equal rights and representation for the nearly 5 million Americans living in U.S. territories and the District of Columbia. It was founded in February 2013 and is based in Washington, D.C. For more information about We the People Project, visit


Weare looking to make territorial rights a national issue

NEIL Weare, president and founder of the We the People project, spoke to about 100 people in the CLASS Lecture Hall at the University of Guam yesterday about the project that seeks equal rights and political representation for all those living in the U.S., including residents of the U.S. territories and Washington, D.C. He will speak to members of the Guam Bar Association today at noon, and will hold a fundraiser at Club Denial tomorrow evening. He will also speak to the CNMI Bar Association and at the Northern Marianas College in Saipan.

“This is the public launch of We the People project,” he told Variety. “Really it involves all the territories.” The project addresses issues common to Guam, the Northern Mariana Islands, American Samoa, the Virgin Islands, Puerto Rico, and Washington, D.C.

We the People was formed in February. Its most immediate focus is its representation of eight plaintiffs from American Samoa in the case Tuaua v. United States. The plaintiffs claim that under the citizenship clause of the 14th Amendment to the United States, they should be citizens by virtue of being born in the U.S. territory. Residents of American Samoa are considered non-citizen nationals.

“The status of America Samoa is basically the same as it was in Guam before the Organic Act,” Weare said. “The issue and relevance for the other territories is: Is the citizenship of the residents of these areas based on federal statute which can change, or is it based upon the guarantees of the Constitution?”

Insular cases

If it is the former, Congress can remove citizenship by passing another law – the same way it granted it, Weare said.

“Then more broadly with that case as a vehicle for reconsidering the insular cases, this impact litigation (the Tuaua case) provides an opportunity to have a real national conversation about the status of these areas and revisiting those cases,” he said. “It creates an opportunity for different kinds of political discussion in Congress and in the territories about what the future of these areas is.”

The “insular cases” are a series of court decisions in the early part of the 20th century – shortly after the territories in question became part of the United States. They have been interpreted to mean that the full guarantees of the Constitution do not apply in the “unincorporated territories.”

“Under the insular cases ... we can keep these areas in this perpetual state without ever having to address issues of political representation,” he said. “If you change that, you can create some new opportunities for addressing these broader issues of rights and representation.”

At UOG, Weare told attendees how, as a high school student, he had been incensed at the unfairness of Guam’s territorial status and had carried that indignation through his higher education and into his career.

Weare is a former Guam resident and graduate of Southern High School. He worked as a staffer for the Guam Legislature and as press secretary for Guam Delegate Madeleine Bordallo. He holds his doctorate in law from the Yale Law School.

“The new approach that our organization is talking about is trying to bring these areas together,” he said. “So instead of it being a Guam issue or a D.C. issue or a Puerto Rican issue, it’s really an American issue. It’s a civil rights issue that affects almost 5 million Americans. Equal constitutional rights and representative government are really the core of what American democracy is about.”

He said the organization is trying to “create a new civil rights movement around rights and representation for all Americans.”

Banding together

The territories will more likely be successful by banding together. “In the last 50 years, it’s been an every-man-for-himself strategy in each of these areas,” he said. “It would be a much more powerful statement and movement if the residents of these areas worked toward a common solution. The voice of nearly 5 million Americans is much more powerful than the voice of any of these communities by themselves.”

The organization’s advisory board includes former Guam Delegate Ben Blaz and former Assistant Secretary of the Interior for Insular Affairs Tony Babauta.

The first task will be to build connections among the different communities, Weare said. “The timeline is the next two years. We’re going to be focusing on work in the territories and D.C. itself to really get this conversation going, then – a few years after that, leading up to the 2016 presidential election – really trying to make this a national conversation.”

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