American Samoa's status hangover of 'Jim Crow' laws says lawyer

Transcript

A group of five American Samoans are hoping to take their case for United States citizenship to the Supreme Court in Washington.

Under the current law, American Samoans are considered US residents, not citizens, which denies the territory and its people several constitutional rights and self-government provisions.

One of the lawyers taking the case, Charles Alailima, says the law dates back over 100 years to the controversial 'Jim Crow' laws, which came to personify racial oppression and segregation.

Mr Alailima told Jamie Tahana the current status of American Samoans is a sad hangover from a dark period of America's past and needs to be changed.

CHARLES ALAILIMA: Five generations of Samoans have been born and raised under the American flag. The American constitution states that all persons born within the boundaries of the United States are US citizens, and this is under the 14th amendment that was passed right after the civil war when America was bound and determined to ensure that we would never go back to a previous time before the civil war when Americans were categorised.

JAMIE TAHANA: Although there is the caveat of the current law which is the insular cases law, which is I guess controversial in itself because it deems those in territories to be lesser. Just take us through the doctrine that's being challenged?

CA: The doctrine that's being challenged is the insular cases, and these cases came up well after the 14th amendment had passed and case law had been set that anybody born in the United States are US citizens. America won the Spanish-American war and acquired a number of the colonies of Spain, including Cuba, Puerto Rico, Philippines. At the same time, America also acquired by treaty the American Samoa islands. The insular cases raised the issue back in the early 1900s of exactly how we were going to treat these people that were acquired by conquest. And at that point in time the United States was in the midst of its perhaps sad period of Jim Crow, in which they categorised people according to their race. In this particular case, we believe the insular cases, basically bowing to the politics of the time, ruled that these outside territories do not have the right to citizenship. Now, 115 years have passed; the Philippines and Cuba have gotten their independence, citizenship has been granted to all the other territories that remain with the United States, but they have not done it for American Samoa. And in this particular case we're saying that we believe the 14th amendment should be applied.

JT: Do we know why it hasn't been applied to American Samoa? Why American Samoans are residents when a resident of, say, Guam or Puerto Rico is a citizen?

CA: The issue came up back in 1929 when a Senate commission came down to American Samoa and they basically said 'we recommend American Samoans for citizenship', and a lot of the American Samoan chiefs supported the citizenship. The US Navy, however, apparently wanted to maintain some kind of control and basically convinced a number of chiefs to say no, and in essence the congress at that time refused to grant the citizenship as the commission had recommended.

JT: And so this case has been taken to various other US courts -- the federal appeal circuit and such -- but it has been turned down. So what was the reason for retaining this law, this doctrine?

CA: The reasons generally given in that case is that they felt constrained by the Supreme Court's decision in the insular cases. Basically, where the Supreme Court has ruled and appellate court and the courts below them have to accept the precedent set by the Supreme Court until the Supreme Court changes it, so I think that was one of the primary issues. The other was that this was being brought up by a group of American Samoans -- not by the American Samoa government -- and so they are basically saying that until the American Samoa government brings up the issue, this issue should not be decided based on requests by individuals within American Samoa. Opposite to that, we believe that citizenship is an individual right, that any individual can come to the court and ask. The issue of citizenship is not a political issue, the issue of citizenship is a constitutional issue. The only issue is; is American Samoa a sovereign part of the United States? And if it is a sovereign part of the United States, then the issue of citizenship is already set by the US constitution.  

JT: And that is something that the Supreme Court is able to decide or overthrow its past ruling?

CA: Correct. It's able to do this and it is able to basically either distinguish its prior ruling or overrule its prior ruling. It did so in the case of Brown vs Board of Education for blacks in the US in 1955, when it specifically overruled a previous decision made by the same Justice that issued the insular cases decision. Justice Brown had a doctrine of 'separate but equal' which allowed the states to distinguish by race. That was overruled by the Supreme Court in 1955. We're saying that process should also be applied to these cases, and a great many of the legal scholars in America who are supporting our petition are basically saying it's time to do the same thing with the insular cases that we did with Brown vs Board of Education -- relegate it to the past. That was an ugly past, let's start fresh.

JT: You've got to pitch it to the Supreme Court don't you for them to hear it. What is the process to get the Supreme Court to hear it and then to decide on it?

CA: Well the first thing we have to do; because the Supreme Court has the discretion on whether to take a case or not, we have to convince at least four members of the Supreme Court that this is an issue that should be reviewed. So the first thing is to petition the Supreme Court for a review, and then basically put in front of the Supreme Court the reasons why we believe this is an important action to be reviewed. Then the Supreme Court justices will discuss whether or not they will take up that case.