by Andrew Walden
Pointing out that “A qualified voter, as stated in Article II, Section 1, is required to be a United States Citizen,” the Hawaii Office of Elections August 3, 2018 proclaims that the sole Republican running for HD43, American Samoa born Sai Timoteo, “is no longer considered a candidate…because she did not meet the constitutional requirements for the office at the time of the filing of her nomination paper.”
Hawaii Republican Party Chair Shirlene Ostrov responds: Timoteo is a "lifelong American with a U.S. passport" being deprived "of her basic democratic rights because of discriminatory, colonial-era laws that give her second-class status as an American.”
The questions surrounding citizenship for those born in American Samoa are not nearly as simple as Ostrov says.
What’s the problem?
One word: “fa’amatai.”
Under the “fa’amatai” or “fa’a Samoa” system, extended families led by “matai” chiefs control most of the land in American Samoa. Non-Samoans are prohibited from owning real estate—by law. The Territorial Senate of American Samoa consists exclusively of matai chiefs—by law.
All of this would violate the United States Constitution, except for one thing--American Samoa is an “unincorporated” territory of the United States with a form of the American Samoa Government determined fundamentally by a series of Turn-of-the-20th-Century Treaties and a Territorial Constitution which is based upon them. American Samoa citizenship rights have not been subsequently amended by Act of Congress in the way that other “unincorporated” territories such as Puerto Rico (1917) and Guam (1952) have.
The Constitution of the Territory of American Samoa specifies,
Art 1, Sec 3: “It shall be the policy of the Government of American Samoa to protect persons of Samoan ancestry against alienation of their lands and the destruction of the Samoan way of life and language, contrary to their best interests.”
Art 2, Sec 2: “Senators shall be elected in accordance with Samoan custom by the county councils of the counties they are to represent….”
Art 2, Sec 3: “A Senator shall … be the registered matai of a Samoan family who fulfills his obligations as required by Samoan custom in the county from which he is elected…."
The American Samoa Constitution is in turn based upon two key treaties:
The April 17, 1900, “Cession of Tutuila and Aunu’u” signed by “Kings and Chiefs” transferring sovereignty of Tutuila and Aunu’u islands to the United States includes this commitment: “The Chiefs of the towns will be entitled to retain their individual control of the separate towns….”
The subsequent “Cession of Manu’a Islands” includes: “…the rights of the Chiefs in each village and of all people concerning their property according to their customs shall be recognized.”
A 2012 lawsuit, Tuaua v USA, unsuccessfully challenged the lack of birthright US Citizenship status for American Samoans. In his June 26, 2013, ruling, Judge Richard J Leon, explains American Samoa citizenship is a political question, not to be decided by the courts:
“… federal courts have held over and over again that unincorporated territories are not included within the Citizenship Clause, and this Court sees no reason to do otherwise!”
“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.“
Now, a new case filed in March, 2018, in Utah, Fitisemanu v United States, reprises the same question. The American Samoa Government and American Samoa's Republican Territorial Delegate Amaua Amata are requesting intervenor status in the case, arguing:
“Despite the fact that the Supreme Court denied certiorari in a virtually identical case less than two years ago, Tuaua v. United States, … three U.S. nationals from American Samoa and a nonprofit organization ask that this Court revisit the question, forge an unprecedented path, and unilaterally declare that the Citizenship Clause of the Fourteenth Amendment applies to all persons born in American Samoa. Such a decision would fundamentally alter the status of both the people and the unincorporated territory of American Samoa. This case thus poses a question of exceptional importance to the people of American Samoa, and the movants have a direct and substantial interest in this litigation that may be impaired and is not adequately represented by the current parties. The D.C. Circuit previously recognized the unique importance of the movants’ interests in strikingly similar litigation, granted intervention, allocated half of defendant-appellee’s oral argument time to the intervenors, and cited their arguments extensively in the eventual 3-0 opinion declining to impose birthright citizenship.”
Sai Timoteo is telling reporters she didn't realize she wasn't allowed to vote or hold office. Her statement is wise when seen in light of federal laws against non-citizen voting.
Any other people who might be accused of knowingly promulgating the candidacy of a non-citizen or voting by a non-citizen should very carefully consider the ramifications of the following federal laws before making any public or private statement which could be used to support prosecution against them:
Pursuant to 18 U.S.C. § 611, it is a crime – punishable by a fine and up to one year in prison – for an alien to vote in a federal election.
Pursuant to 8 U.S.C. § 1227, any alien who has voted in violation of any Federal, State, or local constitutional provision, statute, ordinance, or regulation is deportable.
Pursuant to 42 U.S.C. § 1973gg-10(2) any false statement concerning an applicant’s citizenship status that is made on a registration form submitted to election authorities is a crime.
Pursuant to 18 U.S.C. § 911 knowing and willful false assertions of United States citizenship in order to vote are punishable by up to three years in prison.
Pursuant to 18 U.S.C. § 1015(f) it is a criminal offense for an individual to make a false statement or claim that he or she is a citizen of the United States in order to register or to vote.
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Related:
PACER: 1:12-cv-01143-RJL -- TUAUA et al v. UNITED STATES OF AMERICA et al
PACER: 1:18-cv-00036-CW: Fitisemanu v United States
2018: Fitisemanu v. United States - Equal Citizenship in U.S. Territories
2015: Full Text: Court Dismisses American Samoa Suit for US Citizenship
2015: AMERICAN SAMOA: LONE HOLDOUT AGAINST GAY MARRIAGE
2018: American Samoans sue for birthright citizenship (again)
2018: US Citizen or US National: American Samoans in the Military
August 2, 2018: HD43 Goes Automatic Democrat as Republican born in American Samoa told she's ineligible to run
Samoa News: American Samoa may jump on board as a defendant in citizenship suit
Samoa News: Options for Am Samoa’s future political status are laid out
Samoa News: “Perhaps the most important benefit to many American Samoans has been the protection of our culture and our communal land tenure system that is a foundation of our culture.”
WHT: Can non-citizens vote? Elections officials rely on affidavits to verify citizenship
HNN: The territory's government opposed a similar lawsuit filed in 2012 partly because of its potential impacts on American Samoa's land tenure system, which bars landownership by people who are not of American Samoan citizenship