Fitisemanu v. United States

PUBLISH

FILED
United States Court of Appeals
Tenth Circuit

UNITED STATES COURT OF APPEALS December 27, 2021

FOR THE TENTH CIRCUIT

Christopher M. Wolpert
Clerk of Court

JOHN FITISEMANU; PALE TULI;
ROSAVITA TULI; SOUTHERN UTAH
PACIFIC ISLANDER COALITION,

Plaintiffs - Appellees,
V.

UNITED STATES OF AMERICA; USS.
DEPARTMENT OF STATE; ANTONY
BLINKEN, in his official capacity as
Secretary of the U.S. Department of State;
IAN G. BROWNLEE, in his official
capacity as Assistant Secretary of State for
Consular Affairs,

Defendants - Appellants,
and

THE HONORABLE AUMUA AMATA;
AMERICAN SAMOA GOVERNMENT,

Intervenor Defendants.

VIRGIN ISLANDS BAR ASSOCIATION:
AMERICAN CIVIL LIBERTIES UNION:
ACLU OF UTAH; LINDA S. BOSNIAK;:
KRISTIN COLLINS; STELLA BURCH
ELIAS; SAM ERMAN; TORRIE
HESTER: POLLY J. PRICE; MICHAEL
RAMSEY; NATHAN PERL-
ROSENTHAL; LUCY E. SALYER:
KATHERINE R. UNTERMAN:

No. 20-4017
(D.C. No. 1:18-CV-00036-CW)
(D. Utah)
CHARLES R. VENATOR-SANTIAGO;
SAMOAN FEDERATION OF AMERICA,
INC.; RAFAEL COX ALOMAR; J.
ANDREW KENT; GARY S. LAWSON;
SANFORD V. LEVINSON; CHRISTINA
DUFFY PONSA-KRAUS; STEPHEN I.
VLADECK; CONGRESSWOMAN
STACEY PLASKETT; CONGRESSMAN
MICHAEL F.Q. SAN NICOLAS; CARL
GUTIERREZ; FELIX P. CAMACHO;
JUAN BABAUTA; DR. PEDRO
ROSSELLO; ANIBAL ACEVEDO VILA;
LUIS FORTUNO; JOHN DE JONGH;
KENNETH MAPP; DONNA M.
CHRISTIAN-CHRISTENSEN; AMANDA
FROST; LINDA K. KERBER; D.
CAROLINA NUNEZ; ROGERS M.
SMITH,

Amici Curiae.

JOHN FITISEMANU; PALE TULI;
ROSAVITA TULI; SOUTHERN UTAH
PACIFIC ISLANDER COALITION,

Plaintiffs - Appellees,
V.

UNITED STATES OF AMERICA; USS.
DEPARTMENT OF STATE; ANTONY
BLINKEN, in his official capacity as
Secretary of the U.S. Department of State;
IAN G. BROWNLEE, in his official
capacity as Assistant Secretary of State for
Consular Affairs,

Defendants,

and

No. 20-4019
(D.C. No. 1:18-CV-00036-CW)
(D. Utah)
THE HONORABLE AUMUA AMATA;
AMERICAN SAMOA GOVERNMENT,

Intervenor Defendants - Appellants.

VIRGIN ISLANDS BAR ASSOCIATION:
AMERICAN CIVIL LIBERTIES UNION:
ACLU OF UTAH; LINDA S. BOSNIAK;:
KRISTIN COLLINS; STELLA BURCH
ELIAS; SAM ERMAN; TORRIE
HESTER: POLLY J. PRICE; MICHAEL
RAMSEY; NATHAN PERL-
ROSENTHAL; LUCY E. SALYER:
KATHERINE R. UNTERMAN:
CHARLES R. VENATOR-SANTIAGO:
SAMOAN FEDERATION OF AMERICA,
INC.; RAFAEL COX ALOMAR: J.
ANDREW KENT: GARY S. LAWSON:
SANFORD V. LEVINSON; CHRISTINA
DUFFY PONSA-KRAUS; STEPHEN I.
VLADECK:; CONGRESSWOMAN
STACEY PLASKETT: CONGRESSMAN
MICHAEL F.Q. SAN NICOLAS: CARL
GUTIERREZ; FELIX P. CAMACHO:
JUAN BABAUTA; DR. PEDRO
ROSSELLO; ANIBAL ACEVEDO VILA:
LUIS FORTUNO; JOHN DE JONGH;
KENNETH MAPP: DONNA M.
CHRISTIAN-CHRISTENSEN:; AMANDA
FROST: LINDA K. KERBER; D.
CAROLINA NUNEZ: ROGERS M.
SMITH,

Amici Curiae.

ORDER

Before TYMKOVICH, Chief Judge, HARTZ, HOLMES, BACHARACH,
PHILLIPS, MORITZ, and CARSON, Circuit Judges.”

These matters are before the court on Plaintiffs-Appellees’ Petition for Rehearing
En Banc (“Petition”). We also have responses from Defendants-Appellants and
Intervenor Defendants-Appellants.

The Petition and responses were transmitted to all non-recused judges of the court
who are in regular active service. A poll was called and did not carry. See Fed. R. App. P.
35(a) (en banc consideration requires the approval of a majority of the circuit judges who
are in regular active service and who are not disqualified). Accordingly, the Petition is
DENIED.

Judge Bacharach and Judge Moritz would grant rehearing en banc. Judge
Bacharach has prepared the attached written dissent from the denial of rehearing en banc,
which is joined by Judge Moritz.

All pending motions for leave to file amici curiae briefs are granted. The briefs

attached to those motions will be shown as filed as of the date of this order.

Entered for the Court,

aD

CHRISTOPHER M. WOLPERT, Clerk

“ The Honorable Scott M. Matheson, the Honorable Carolyn B. McHugh, the
Honorable Allison H. Eid, and the Honorable Veronica S. Rossman did not participate in
the consideration of Plaintiffs-Appellees’ petition for rehearing en banc.

4
John Fitisemanu, et al. v. United States of America, et al.
Nos. 20-4017, 20-4019
BACHARACH, J., dissenting from the denial of en banc consideration

This case involves a discrete question: Does the Fourteenth
Amendment’s Citizenship Clause extend to individuals born in American
Samoa? The individual plaintiffs—John Fitisemanu, Pale Tuli, and
Rosavita Tuli—say yes: having been born in American Samoa, they allege
birth “in the United States.” U.S. Const. amend. XIV, § 1, cl. 1. The
defendants—the United States, the American Samoa government, and the
Honorable Aumua Amata—say no: they contend that unincorporated
territories, including American Samoa, are not “in the United States.”

A divided panel reversed summary judgment for the plaintiffs
without determining the meaning of the constitutional text. Instead, the
panel majority characterizes the constitutional text as ambiguous and rests
on other grounds. One panel member (Judge Lucero) relies on the Insular
Cases. Another panel member (Chief Judge Tymkovich) relies on a
congressional practice that didn’t begin until roughly a half-century after
ratification of the Citizenship Clause.

Both approaches skirt our obligation to determine the meaning of the
constitutional language. Because of the exceptional importance of this
obligation and the issue of citizenship, we should have granted the

plaintiffs’ request for en banc consideration.
1. The issue is exceptionally important.

We rarely convene en banc, but do so for questions of exceptional
importance. 10th Cir. R. 35.1(A). In my view, the issue of citizenship for
individuals born in American Samoa is exceptionally important.

The right of citizenship is precious to every U.S. citizen, something
that the Fourteenth Amendment has removed from Congress’s control. See
Afroyim v. Rusk, 387 U.S. 253, 263 (1967) (stating that the framers of the
Fourteenth Amendment “wanted to put citizenship beyond the power of any
governmental unit to destroy”). That precious right is being denied to those
born in American Samoa.

Although American Samoa ceded itself to the United States over a
century ago, individuals born there have never obtained recognition as U.S.
citizens. So if American Samoans are not naturalized, they cannot enjoy
any of the plethora of rights that we enjoy as citizens. For over 120 years,
we’ve denied these rights to American Samoans.

This issue also affects individuals born in the United States’ other
territories, including natives of Puerto Rico born in the last 120+ years,
natives of Guam born in the last 70+ years, natives of the Northern
Mariana Islands born in the last 40+ years, and natives of the Virgin
Islands born in the last 100+ years. Unlike American Samoans, individuals
born in these territories enjoy statutory citizenship; but they are treated as

citizens only at the whim of Congress.
Few judicial tasks are more important than deciding who are U.S.
citizens and who aren’t. Our method of answering this question is just as
important. To answer that question, we must unravel the meaning of the
Citizenship Clause. Unlike many constitutional provisions, the Citizenship
Clause expressly defines its geographic scope, stating that the right
(citizenship) extends to everyone born “in the United States.” So the
parties and the panel agree that our threshold task is to define the scope of
the geographic term “in the United States.”

2. U.S. territories, such as American Samoa, lie “in the United
States.”

To interpret this term, we have various interpretive tools at our
disposal. The Citizenship Clause was ratified in 1868, so different jurists

might consider contemporary

e judicial opinions,

e censuses,

e maps,

e dictionary definitions,

e legislative statements, and
° statutes.

All of these sources treated territories like American Samoa as lying “in

the United States.”
a. Contemporary judicial opinions included the territories as
part of the United States.

To discern what ordinary Americans meant in 1866 to 1868 by the
phrase “in the United States,” we can consider contemporary judicial
opinions. In the nineteenth century, “[c]Jourts .. . commonly referred to
U.S. territories as ‘in’ the United States.” Michael D. Ramsey, Originalism
and Birthright Citizenship, 109 Geo. L.J. 405, 426 (2020).

For example, in the early part of the century, the Supreme Court
observed that

e “the United States” “is the name given to our great republic,
which is composed of States and territories” and

e “the territory west of the Missouri [was] not less within the
United States ... than Maryland or Pennsylvania.”

Loughborough y. Blake, 18 U.S. (5 Wheat.) 317, 319 (1820) (Marshall,
C.J.).

Justice Story, riding Circuit, also explained that “[a] citizen of one
of our territories is a citizen of the United States.” Picquet v. Swan, 19 F.
Cas. 609, 616 (C.C.D. Mass. 1828).

About 25 years later, the Court considered whether U.S. tariffs had
been properly applied to products coming from outside the United States
into the Territory of California. Cross v. Harrison, 57 U.S. (16 How.) 164,
181, 197 (1853). The Court answered yes, considering the Territory of

California as “part of the United States.” Jd. at 197-98.
And in 1867, the Supreme Court observed that U.S. citizens included
inhabitants of “the most remote States or territories.” Crandall v. State of
Nevada, 73 U.S. (6 Wall.) 35, 48-49 (1867) (quoting Smith v. Turner (The
Passenger Cases), 48 U.S. (7 How.) 283, 492 (1849) (Taney, C.J.,
dissenting)).!

The American Samoan government points out that in Fleming vy.
Page, the Supreme Court held that Tampico (a port in Tamaulipas, Mexico)
was not “in the United States” even though the U.S. military had occupied
the port during the Mexican-American War. 50 U.S. 603, 614-16 (1850).
But the Court clarified that even though other nations had to regard
Tampico as U.S. territory, the port was not “territory included in our
established boundaries” without a formal cession or annexation. /d. So the
opinion doesn’t address whether territories of the United States are “in the

United States.”

1 A leading attorney of the era, William Rawle, also observed that

“every person born within the United States, its territories or districts,
whether the parents are citizens or aliens, is a natural born citizen in the
sense of the Constitution, and entitled to all the rights and privileges
appertaining to that capacity.” William Rawle, A View of the Constitution
of the United States of America 86 (Philip H. Nicklin, 2d ed. 1829); see
Stewart Jay, The Status of the Law of Nations in Early American Law, 42
Vand. L. Rev. 819, 826-27 (1989) (stating that Mr. Rawle was a U.S.
Attorney and a leading attorney of the period).
b. Contemporary dictionaries, maps, atlases, and censuses
included the territories as part of the United States.

We may also consider contemporary dictionaries, maps, atlases, and
censuses. See NLRB vy. Noel Canning, 573 U.S. 513, 527 (2014) (looking to
contemporary dictionaries to interpret the Recess Appointments Clause);
New Jersey v. New York, 523 U.S. 767, 797-803, 810 (1998) (looking to
historical censuses and maps to determine which parts of Ellis Island lay in
New York and New Jersey).

Like judicial opinions, dictionaries of the era regarded territories as
land “in the United States.” For example, the 1867 edition of Webster’s
Dictionary defined “Territory” as “2. A distant tract of land belonging to a
prince or state. 3. In the United States, a portion of the country not yet
admitted as a State into the Union, but organized with a separate
legislature, a governor.” William G. Webster & William A. Wheeler, 4
Dictionary of the English Language 434 (academic ed. 1867).

The next year, Judge John Bouvier’s legal dictionary defined
“Territory” even more broadly as “[a] portion of the country subject to and
belonging to the United States which is not within the boundary of any of
the States.” II John Bouvier, A Law Dictionary, Adapted to the
Constitution and Laws of the United States of America, and of the Several
States of the American Union 587 (George W. Childs 12th ed. rev. 1868).

So contemporary dictionaries defined territories as “in the United States.”
Appellate Case: 20-4017 Document: 010110624392 Date Filed: 12/27/2021

This understanding is also apparent in contemporary maps of the
United States. For example, the 1857 map of the United States included the

territories of Washington, Oregon, Nebraska, Nevada, Utah, New Mexico,

Arizona, Dakota, and Indian Territory (later Oklahoma):

WEXEHAL MAL OF THE
UWI
shew Wh srs sed rivet

(Sob er Temnns ol tie

Pox tab x

PELE A SCAVE-MOLEING STATES,
o

BD STATES

Henry D. Rogers, W. & A.K. Johnston Ltd. & Edward Stanford Ltd.,
General Map of the United States, Showing the Area and Extent of the Free

& Slave-Holding States & the Territories of the Union: also the Boundary

of the Seceding States (1857), https://www.loc.gov/resource/

g3701le.cw1020000/ (last visited on Dec. 1, 2021) (on file at the Library of
Congress).

Like contemporary maps, the censuses of the era showed territories
as part of the United States. For example, the 1854 census stated that
“[t]he United States consist at the present time (1st July 1854,) of thirty-
one independent States and nine Territories... .” J.D.B. De Bow,
Superintendent of the U.S. Census, Statistical View of the United States 35
(A.O.P. Nicholson 1854).

In 1870, the U.S. Statistical Atlas again listed both states and

territories as the region constituting the United States:

STATES AND TERRITORIES.

Tae UNITED STAvas ee : ____AREA, POPULATION, AND AVERAGE nessa Ce SETTLEMENT OF EAC
t 1860. 0 : 1840. 183
THE STATES...0sceccceccscoe I ——

I jAlabama.
2|Arkansas
3/California.. .
4|Connecticut.

38| Alaska (unorganized territory)..
AQMANIZOURR aa'o. cfe'o'd's weinl ak oes 3

2 Delaware er AOPATUMUSES ona p oes oc cc's tian soe
7\Georgia.. 41\Colorado......... .
8iIllinois. . SA DARD a cnc os + 35s -@
g|Indiana 43) District of Columbi |
ro|Iowa. 44/Florida Caw Sane cee

11/Kansas.. 45 dhO.. .500is-050 :
12/Kentucky AONMIGR asses cc cang serassse

13|Louisiana
14|Maine...
15|Maryland......
16 Massachu
17| Michigan

‘47\Indian Country (unorg. territory)
48|Ind. Coun., Unorg. ter. west ol
AQUMOIBNEE sic ida oe wa aork gs chw ss
SOMDWE sie sc sin's'e'e's wicis vicipaisio nice
BEMIOMB Rs ves 3 5 6-019 Ses ge soso i
“1 §2|Louisiana ... !
53|Michigan. ...
54|Minnesota
«ih 55|Mississippi.. . - ae
CEMA Re tha ico 0/k Seid ea'cinn eth
* | 57\Montana. .
Se] SOLNCUFESER «5025 0c case
<4 59|New Mexico.........
60\Ohio, North of the River......
ss ‘tie! “Sf 6x Ohio, South of the River......
Galremen.. 56 ss es tess
2] 63 Orleans. . .
tive 4 64/Utah.....
65| Washington. .

19

20 Missouri.
21 Nebraska
22 Nevada. .
23 New Hampshire. .
24 New Jersey .
25 New York ..

31 South Carolina. .
32) Tennessee

‘Texas... @ 4 |
oH Weston: 66|Wisconsin... . ||
35| Virgini OPV OUIN Gs w ere'ss se oni'e aieisivnie'c \|

36|West Virgini >

37|Wisconsin:<.-.. 68/On pub. ships in serv. of the U.S.

Francis A. Walker, Statistical Atlas of the United States Based on the

Results of the Ninth Census 1870 (1874) (on file at the Library of
Appellate Case: 20-4017 Document: 010110624392 Date Filed: 12/27/2021 Page: 13

Congress). The atlas thus derived the area and population of “the United

States” by including the territories as well as the states.

AREA, POPULA AND AVERAGE DENSITY OF SETTLEMENT OF
1870. @® 1860. ©@ 1850. 1840. 183 Area and population
Seams au PuwTomts sass | renons | gia, | $4? | Penoes | gia, | Spas | Penom |im2,| Syme | renoas | ina. Same of “The United
Area and population UNinED Scares States,” the sum of
of “The States” Pee ; the States and the
: Territories

1,321,01

Area and population = “
of “The Territories” : efeges

oe
sesasewes seas Bernd (ecce wace anal [iene wea teen? || anne 54,477) 0.92

of the
South of the Rive:
* Tog
0.34 een | eee .
sere 3945) 9-39) «+00

pub, ships in serv. of the

(@) The land-surface of the United States, ‘square miles, when increased ©

by the water surface of the great lakes and rivers, gives a total arca to the United States.

tes of about 4,000,000 square miles, was

of the es
u

Id.

Together, contemporary judicial opinions, dictionaries, maps, atlases,
and censuses provide convincing proof that nineteenth-century Americans
considered the U.S. territories to lie “in the United States.” Given the

uniformity of that proof, I see nothing uncertain or ambiguous about the
intent to apply the Citizenship Clause to the territories. So when the
United States acquired American Samoa as a territory, everyone born in the
territory became a U.S. citizen. We thus need not stray beyond the text of
the Citizenship Clause to determine the plaintiffs’ citizenship.

Despite the uniformity of the historical evidence, the panel majority

points solely to a single map published in 1830:

|
ae se

Fitisemanu v. United States, | F.4th 862, 876 n.18 (10th Cir. 2021)
(majority opinion) (citing Mary Van Schaack, A Map of the United States
and Part of Louisiana (c. 1830), www.loc.gov/resource/g3700.ct000876

(last visited Dec. 1, 2021) (on file with the Library of Congress)). Based

10
on the title of this map (A Map of the United States and Part of Louisiana),
the majority implies that the mapmaker, Ms. Van Schaack, wouldn’t
intentionally be redundant by specifying in the title that the map included
Louisiana if the territory would otherwise have been considered part of the
United States.

This reasoning incorrectly assumes that Louisiana was a territory
when the map was drawn. Louisiana was a state, not a territory. As a state,
Louisiana was obviously part of the United States. Irrespective of Ms.
Schaack’s reasons for the title, however, she did include three U.S.
territories in her map of the United States: the Territories of Mississippi
(1798), Indiana (1800), and Illinois (1809).* So her map supplies further
historical proof that nineteenth-century Americans considered the
territories part of the United States.

The panel majority explains away the judicial opinions, dictionaries,
maps, atlases, and censuses, stating that they were referring to
incorporated territories rather than unincorporated territories like
American Samoa. Fitisemanu v. United States, 1 F.4th 862, 876 (10th Cir.
2021) (majority opinion). This explanation is mistaken. In fact, the term

“unincorporated territory” hadn’t even existed in 1868; the term didn’t

2 By the time of this map, Mississippi, Indiana, and Illinois had also

become states. Despite statehood in each of these regions, the map depicts
them as territories.

11
surface until 33 years later (when Justice White concurred in Downes v.
Bidwell, 182 U.S. 244, 311-14 (1901)). So the term cannot help us
interpret the Citizenship Clause. But contemporary treatment of similar
territories confirms that nineteenth-century Americans considered all
territories to be part of the United States—even if they weren’t destined
for statehood.

Though the term “unincorporated territory” hadn’t yet surfaced in
1868, the United States had fresh experience with territories that were not
considered destined for statehood. Indeed, only a year before ratification
of the Citizenship Clause, the United States had acquired the Territory of
Alaska from Russia. The acquisition came in a treaty that said nothing
about eventual statehood for Alaska. See Cession of Alaska, Russ.-U.S.,
T.S. No. 301, Mar. 30, 1867.7

Though no one in 1868 would have considered the new Territory of

Alaska as incorporated or otherwise destined for statehood, Alaska was

3 Though nothing was said about statehood for Alaska, the treaty did
ensure Alaskans “the enjoyment of all of the rights, advantages, and
immunities of citizens of the United States.” Cession of Alaska, Russ.-
U.S., T.S. No. 301, art. III, Mar. 30, 1867. Similar language governed the
United States’ acquisition of a large part of American Samoa: “[T]here
[would] be no discrimination in the suffrages and political privileges
between the present residents of said Islands and citizens of the United
States dwelling therein.” Instrument of Cession, Chiefs of Manu’a-U.S.,
July 14, 1904 (Ta’u, Olosega, Ofu, and Rose Islands),
https://history.state.gov/historicaldocuments/frus1929v01/d855 (last
visited Dec. 1, 2021).

12
Appellate Case: 20-4017 Document: 010110624392 Date Filed: 12/27/2021 Page: 17

uniformly considered part of the United States. For example, John
Bouvier’s legal dictionary (published 15 years after ratification of the
Citizenship Clause) defined Alaska as part of the United States. II John
Bouvier, A Law Dictionary, Adapted to the Constitution and Laws of the
United States of America, and of the Several States of the American Union
765 (J.P. Lippincott and Co., 15th ed. rev. 1883).

Like Bouvier’s legal dictionary, maps of the era treated Alaska as
part of the United States. Indeed, in the year that the Citizenship Clause
was ratified, the map of the United States included the newly acquired

Territory of Alaska:

13
Appellate Case: 20-4017 Document: 010110624392 Date Filed: 12/27/2021 Page: 18

H. H. Lloyd & Co., The Washington map of the United States (1868),
https://www.loc.gov/resource/g3700.ct002969/ (last visited Dec. 1, 2021)
(on file at the Library of Congress).

Atlases of the era did the same. Six years after ratification of the
Citizenship Clause, the U.S. Statistical Atlas included the Territory of

Alaska though statehood was still not expected:

POPULA AND AVERAGE DENSITY OF SETTLEMENT OF STATE OR TERRITORY AT EACH CENSUS.

1870. wm 1860.0 reso. TB4g0. 1830. 1820, t81o8 1800.

Staves axp ‘Temmsronies. get | penne Sart | rensens pure | Peenen, Spare | Persone, ‘Suace | Pereens. Square | Peesces. Sang | room | tn | Spe | Perseoe

STATES...
Sael] sore

JHE UNITED

to,

TRRITORI ca! fase

: 2) go> | 88

unorganized territ

Ca it

65)0n pub. ships in strv.af

Francis A. Walker, Statistical Atlas of the United States Based on the

Results of the Ninth Census 1870 (1874) (on file at the Library of

Congress). The atlas thus derived the area and population of “the United

14
Appellate Case: 20-4017 Document: 010110624392 Date Filed: 12/27/2021 Page: 19

States” by including data from the newly acquired Territory of Alaska

without mentioning the prospect of statehood.

POPULATION, AND AVERAGE DENSITY OF SETTLEMENT OF EACH STATE OR TERRITORY AT EACH CENSUS.
1870.04 r&60, 1is0.0 1840. 1B yo. Th20. ' 1810.8 1800.

Sram avo Trasrroames, qe ws Sue haan: in Persone ‘See | Percas | 5 = Persons. |. 23 = Persons. ims Peesens | 108 er Persons.

aska’s Populati on inclu ‘in th
Por ulation of the United states

\ s Area included in the| B
*| “Area of the United States =

Id. The census of 1870 explained that it too included the population of
Alaska in order “to present the statistics of the true population of the country
formerly complete.” Francis A. Walker, Report of the Superintendent of the
Ninth Census, in 1 The Statistics of the Population of the United States xvi
(1870).

But Alaska isn’t the only example of a territory uniformly considered
part of the United States in 1868 even though no one there expected

statehood. Consider the Indian Territory, which appears in this map of the

15
Appellate Case: 20-4017 Document: 010110624392 Date Filed: 12/27/2021 Page: 20

United States in 1856 (roughly a decade before ratification of the

Citizenship Clause):

Crs
a OUSs

oe

STO IIO

:
ie
aN
4)
4
2)
oe
‘

SB

NE

gk

AO

J.H. Colton & Co., The United States of America (1856),
https://mapofus.org/ maps/atlas/1856-US.html (last visited Dec. 1, 2021).

The Indian Territory reappeared the next year in another map of the United

States:

16
Appellate Case: 20-4017 Document: 010110624392 Date Filed: 12/27/2021 Page: 21

EXEMAL MAD OF TIME

UNITED STATES
part i SLavE-WgLoING sures,

Tox abe
ary ae,
+ 5

Henry D. Rogers, W. & A.K. Johnston Ltd. & Edward Stanford Ltd.,
General Map of the United States, Showing the Area and Extent of the Free
& Slave-Holding States & the Territories of the Union: also the Boundary
of the Seceding States (1857),
https://www.loc.gov/resource/g3701le.cw1020000/ (last visited Dec. 1,
2021) (on file at the Library of Congress).

The Indian Territory continued to appear in maps of the United
States. For example, in the year that the Citizenship Clause was ratified,
this map showed the Indian Territory as within the confines of the United

States:

17
Appellate Case: 20-4017 Document: 010110624392 Date Filed: 12/27/2021 Page: 22

as | ee coors age Be

is 4 "O
oF) Or Le Eee
| \

INDIAN TRIBES

WITHIN THE

UNITED STATES b Indian Reservations Cqlored. Hil
yay the a eas

98-G8SISC
G.W. & C.B. Colton & Co., United States (1868),
https://www.loc.gov/item/98685156/ (last visited Dec. 1, 2021).
Similarly, the 1874 U.S. Statistical Atlas included the Indian
Territory when listing the territories and states making up “the United

States”:

18
Appellate Case: 20-4017 Document: 010110624392 Date Filed: 12/27/2021 Page: 23

AREA, POPULATION, AND AVERAGE DENSITY OF SETTLEMENT OF EACH STATE OR TERRITORY AT EACH CENSUS.

| i870. ww |] ribo. a8 | 1850.0 ! 1840. 1830. | TBa0. t 1810.8 1800. 1790.
\ Beraes Persona Persona Pecsoas [Perron Frersens) Pereces
Sram avo Texasrones, . = a E
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Maps and atlases depicted the Indian Territory within the United
States* even though no one would have expected statehood for the Indians
residing in this territory. See Worcester v. Georgia, 31 U.S. (6 Pet.) 515,
557 (1832) (“The treaties and laws of the United States contemplate the

Indian territory as completely separated from that of the states... .”).

4 Many other contemporary maps of the United States included the

Indian Territory. See, e.g., S. Augustus Mitchell et al., Mitchell’s School
Atlas (1839), https://www.loc.gov/resource/g3200m.gct00054/?sp=6 (last
visited Dec. 1, 2021); Henry A. Burr, Disturnell’s New Map of the United
States and Canada: Showing All the Canals, Rail Roads, Telegraph Lines
& Principal Stage Routes (1850), https://www.loc.gov/item/2012593337/
(last visited Dec. 1, 2021).

19
The panel majority says nothing about how Americans of 1868 had
viewed the territories. Regardless of whether statehood was expected,
Americans regarded the U.S. territories as within the United States.

c. Contemporary legislative statements and statutes included
the territories as part of the United States.

Aside from judicial opinions, maps, atlases, censuses, and dictionary
definitions, we have the contemporary statements by legislators discussing
the meaning of the Citizenship Clause. The legislators’ floor statements
uniformly regarded Indian tribes as “in the United States” even though
they did not reside in states or regions destined for statehood. See
Fitisemanu v. United States, 1 F.4th 862, 890-91 (10th Cir. 2021)
(Bacharach, J., dissenting).

In his concurrence, Chief Judge Tymkovich dismisses these
statements as “off-the-cuff statements” by individual legislators. /d. at 882
(Tymkovich, C.J., concurring). But the Supreme Court itself relied on these
floor statements, calling them “valuable ... contemporaneous opinions of
jurists and statesmen upon the legal meaning” of the Citizenship Clause.
United States v. Wong Kim Ark, 169 U.S. 649, 669 (1898).

Nineteenth century statutes confirm that Congress understood
territories to be part of the United States. With creation of the Oklahoma
Territory from the Indian Territory (which was never destined for

statehood), Congress referred to the Indian Territory as a “portion of the

20
United States”: “[A]ll that portion of the United States now known as the
Indian Territory, except so much of the same as is actually occupied by the
five civilized tribes, and the Indian tribes within the Quapaw Indian
Agency, and except the unoccupied part of the Cherokee outlet, together
with that portion of the United States known as the Public Land Strip, is
hereby erected into a temporary government by the name of the Territory of
Oklahoma.” Oklahoma Organic Act, Pub. L. No. 51-182, 26 Stat. 81, 81

(1890) (emphasis added).

In my view, the text of the Citizenship Clause, along with a// of the
historical evidence, shows that the Citizenship Clause extended to
everyone born in the U.S. territories—including individuals born in
territories like Alaska and the Indian Territory, where statehood was not
expected.

3. We must decide what it means to be born “in the United States.”

The panel majority disregards the vast historical evidence on what it
meant in 1868 to be born “in the United States.” Having characterized the
Citizenship Clause as ambiguous, Judge Lucero relies on the Insular Cases,
which considered the impracticability and anomalousness of applying
constitutional provisions to unincorporated territories. Fitisemanu vy.

United States, 1 F.4th 862, 877 (10th Cir. 2021) (majority opinion). But

21
this test doesn’t apply when the constitutional provision defines its own
geographic scope.

The impracticability and anomalousness of the issue does not bear on
the meaning of the constitutional provision itself. Suppose that the
Citizenship Clause had stated that citizenship extends to everyone “born in
a U.S. state or U.S. territory.” Would we still define the scope of the
Citizenship Clause based on impracticability and anomalousness? I doubt
that any of us would because the clause itself would define its geographic
scope. See Examining Bd. of Eng’rs, Architects & Surveyors yv. Flores de
Otero, 426 U.S. 572, 589 n.21 (1976) (interpreting one of the Insular Cases
to provide that the Constitution does not extend to the Philippines “except
insofar as required by [the Constitution’s] terms”). The same is true here,
for the Insular Cases provide no guidance when the Constitution creates a
distinct right and defines its own geographic scope.

The Citizenship Clause performs this double duty, creating a distinct
right (citizenship) and defining its own geographic scope (“in the United
States”). See Fitisemanu y. United States, 1 F.4th 862, 875 (10th Cir. 2021)
(majority opinion) (stating that “[t]he Citizenship Clause’s applicability
hinges [in part] on a geographic scope clause—‘in the United States’”).
This guarantee is self-executing: birthright citizenship “is established by
the mere fact of birth under the circumstances defined in the constitution.”

United States v. Wong Kim Ark, 169 U.S. 649, 703 (1898).

22
For over 120 years, we’ve interpreted this guarantee to elevate
birthright citizenship beyond the reach of the political process. Jd. at 704
(stating that laws and treaties “cannot exclude Chinese persons born in this
country from the operation of the broad and clear words of the
constitution: ‘All persons born in the United States, and subject to the
jurisdiction thereof, are citizens of the United States’”). The Citizenship
Clause “settle[d] the great question of citizenship and remove[d] all doubt
as to what persons are or are not citizens of the United States.” Afroyim vy.
Rusk, 387 U.S. 253, 263 (1967) (quoting Cong. Globe, 39th Cong., Ist
Sess., 2890 (1866) (statement of Sen. Jacob M. Howard)). So Congress
lacks authority “to restrict the effect of birth [in the United States],
declared by the constitution to constitute a sufficient and complete right to
citizenship.” Wong Kim Ark, 169 U.S. at 703.

Despite this intent to remove citizenship from congressional control,
Chief Judge Tymkovich relies on the “settled understanding and practice
over the past century ... that Congress has the authority to decide the
citizenship status of unincorporated territorial inhabitants.” Fitisemanu, 1
F.4th at 883 (Tymkovich, C.J., concurring). In my view, there is no such
settled understanding. The Supreme Court has yet to decide whether the
Citizenship Clause applies to the territories. In the face of this silence,
Congress has stepped in and granted citizenship to some residents of the

territories. But this acquiescence says little, if anything, about Congress’s

23
views on the scope of the Clause. Only one branch—the executive, through
the State Department—has spoken definitively on this issue. See
Fitisemanu v. United States, 426 F. Supp. 3d 1155, 1159 (D. Utah 2019)
(noting the undisputed fact that “[i]t is the State Department’s policy that
[the Citizenship Clause] does not apply to persons born in American
Samoa”) (citation omitted). But even if there were a settled practice and
understanding over the past century, a practice that began a half century
after the ratification of the Fourteenth Amendment would shed little light
on the meaning of the Citizenship Clause in 1868.

Rather than rely primarily on congressional practice, Judge Lucero
would stretch the Insular Cases by applying them in a new setting. The
Insular Cases didn’t address whether the Citizenship Clause—or any other
portion of the Fourteenth Amendment—applied in unincorporated
territories. And the Supreme Court has never applied the “impracticable
and anomalousness test” to determine the applicability of a constitutional
right that defines its own geographic scope. See Reid v. Covert, 354 U.S. 1,
14 (1957) (plurality opinion) (stating that “neither the [Insular Cases] nor
their reasoning should be given any further expansion”). By its terms, the
Citizenship Clause applies to everyone born in the United States, and “we
have no authority .. . to read exceptions into [the Constitution] which are

not there.” /d.

24
As the federal government notes, some other circuits have rejected
application of the Citizenship Clause to unincorporated territories. But
these opinions haven’t grappled with the textual or historical evidence on
the meaning of the Citizenship Clause.

An example is 7Zuaua v. United States—the only other circuit case to
consider whether the Citizenship Clause applies to American Samoa. 788
F.3d 300 (D.C. Cir. 2015). There the D.C. Circuit held that the scope of the
Citizenship Clause was ambiguous, reasoning that the phrase “in the
United States” does not unambiguously

e exclude the territories (unlike the Apportionment Clause’s
reference to “the several States”) or

e include them (unlike the Thirteenth Amendment’s prohibition
on slavery, which applies “within the United States, or any
place subject to their jurisdiction”).

Id. at 302-04. But the court stopped there without considering any
historical evidence of the nineteenth-century meaning of “in the United
States.” See id.

The other four circuit cases addressed application of the Citizenship

Clause to the Philippines, and each opinion relied on Downes v. Bidwell’s
consideration of the Tax Uniformity Clause without considering the

historical meaning of “in the United States.” Rabang v. I.N.S., 35 F.3d

1449 (9th Cir. 1994); Valmonte v. ILN.S., 136 F.3d 914 (2d Cir. 1998);

25
Lacap v. I.N.S., 138 F.3d 518 (3d Cir. 1998) (per curiam); Nolos v. Holder,
611 F.3d 279 (Sth Cir. 2010) (per curiam).

In the first of these cases, the Ninth Circuit held that unincorporated
territories are not “in the United States” for purposes of the Citizenship
Clause, relying on Downes’s interpretation of the Tax Uniformity Clause.
Rabang v. I.N.S., 35 F.3d 1449, 1452-53 (9th Cir. 1994). But important
differences exist between the Tax Uniformity Clause and the Citizenship
Clause: they were ratified eighty years apart; and the Tax Uniformity
Clause protects states, while the Citizenship Clause protects individuals.
The court disregarded these differences without considering the nineteenth-
century meaning of “in the United States.” See id. at 1455 (Pregerson, J.,
dissenting).

Nor did the other three circuit court opinions, which simply followed
the reasoning in Rabang. Valmonte vy. I.N.S., 136 F.3d 914 (2d Cir. 1998);
Lacap v. I.N.S., 138 F.3d 518 (3d Cir. 1998) (per curiam); Nolos v. Holder,
611 F.3d 279 (Sth Cir. 2010) (per curiam).

None of these courts

e focused on the textual meaning of the phrase “in the United
States” or
e addressed the extensive historical evidence that territories were

considered “in the United States” when the Citizenship Clause
was ratified.

26
So none of the other circuit court opinions can shed any meaningful light
on the textual or historical meaning of the Citizenship Clause.
4, Conclusion

We bear an obligation to interpret the geographic scope of the
Citizenship Clause based on the text and its historical context. When we
do, there is only one answer: The Territory of American Samoa lies within
the United States.

Despite the unambiguous, uniform historical meaning of the term “in
the United States,” our country has denied constitutional citizenship for
over a century to virtually everyone born in U.S. territories like American
Samoa. The right of constitutional citizenship for these fellow Americans
is deserving of en banc consideration. I thus respectfully dissent from the

denial of en banc consideration.

27