“We The People Project” Thrown Out of Court Again?

Neil Weare, who heads the “We the People” territorial rights lobbying project, quarterbacked the 2014 American Samoa citizenship case (Tuaua v. U.S.). That case was dismissed by the U.S. District Court in Washington in 2015, and now his second case (Segovia v. U.S.) also has been thrown out of court.

Weare’s appeal from loss of the Tuaua case was rejected in 2016 by the U.S. Court of Appeals for D.C. and the U.S. Supreme Court. Now the ruling against Weare in the Segovia case is being appealed and Weare is close to another moment of truth in which a court may create clarity or more confusion.

In the ill-fated Tuaua case Weare enlisted individual clients who acquired U.S. national status at birth in American Samoa under federal territorial law statutes as named party lawsuit claimants. In his pleadings Weare claimed the U.S. Constitution’s national citizenship clause applies directly in American Samoa and four other U.S. territories, including Puerto Rico.

If the federal court had ruled in his favor, that perversely would have converted four small territories and the last large territory of Puerto Rico into de facto partially incorporated territories, but still denied full incorporation under the Constitution leading to equality through statehood. In essence it would have combined features of “unincorporated” and “incorporated” territory status into an indefinite if not perpetual condition of less than fully democratic political status limbo.

What makes Samoa different?

Today American Samoa is the only U.S. territory still governed under the original 1901 federal territorial case law that invented so-called “unincorporated” territory status. Understanding the island’s unique status compared to other territories requires some historical background.

The U.S. Supreme Court’s 1901 ruling held that the U.S. Constitution does not apply directly in newly acquired U.S. territories populated by non-citizens. So Congress could govern “unincorporated” island possessions ceded to the U.S. by Spain in 1899 outside the umbrella of the Constitution as it applies in States and incorporated territories.

Under that 1901 ruling the court recognized “unincorporated” territory status as constitutionally temporary. Separate rulings by the courts allowed Congress either to deny citizenship to “unincorporated” territories as a step toward eventual independence (e.g. Philippines 1916-1946), or extend U.S. citizenship and incorporate the territory under the Constitution as a step toward statehood (e.g. Hawaii 1903-1959, Alaska 1905-1959).

However, in 1922 the U.S. Supreme Court doubled down on the racially motivated imperialist doctrine of “unincorporated” territory status by applying it to Puerto Rico even after Congress granted U.S. citizenship under federal territorial law statutes. That was the first time in U.S. history any U.S. citizen populated territory was governed outside the Constitution.

After that 1922 ruling U.S. citizenship was granted to Guam, the U.S. Virgin Islands and the Northern Mariana Islands. In direct material contradiction to the original 1901 court doctrine of non-incorporation that applied only to non-citizen populations, Puerto Rico and the other three territories with U.S. citizen populations are still governed as “unincorporated” territories in which the Constitution does not apply directly.

Only American Samoa has declined to petition for U.S. citizenship. That has exempted Samoans from the racially motivated imperialist doctrine of the 1922 case granting “U.S. citizenship” to the other four territories, but still denying incorporation into the Union under the Constitution.

That arguably gives U.S. nationals of American Samoa a status under the 1901 non-incorporation ruling more consistent with the relationship to Washington envisioned by the traditional Chiefs of Samoa over a century ago. At that time local leaders ceded their islands to the U.S. seeking America’s protection while retaining local cultural and political autonomy, leaving any future changes in political status to mutual agreement based on local self-determination.

Samoa said no.

Ignoring the complex and nuanced historical and legal interests of the island peoples, Weare argued in the Tuaua case that all American nationals and citizens in American Samoa and the four other territories – including Puerto Rico – have the same right to birthright U.S. national citizenship by direct application of the Constitution as the States of the Union.

Apparently, Mr. Weare and his cohorts in law school academia were the only ones surprised when the elected and traditional leaders of American Samoa submitted briefs in the Tuaua case opposing imposition of U.S. citizenship in American Samoa by judicial fiat. With or without incorporation under the Constitution, American Samoa chose once again – as it had before – not to seek a change in its political status by unilateral action of the federal government.

Politically, culturally and legally, Weare was so off-target in the Tuaua lawsuit that it was slam-dunked by the federal courts. Despite that failed effort, Weare and his “We the People Project” declared the case a blow to the federal territorial empire, and asked the donors who had funded it to take out their check books and fund the next litigation effort.

That new litigation project by Weare, Segovia v. United States, was brought in the U.S. District Court for the Northern District of Illinois. Once again Weare’s litigation theory and tactics have been answered with dismissal of the Segovia case by a federal judge conspicuously not persuaded of its merits.

The Segovia case will be the subject of the next installment of PR51ST’s reports on the use of litigation by “We the People Project” to redefine territorial rights under federal law.