It was another setback for American Samoans who believe they deserve U.S. citizenship. The Tenth Circuit panel last month ruled that citizenship is not a “fundamental right” in overseas territories and depends on Congress’ whims, not the Constitution, according to Equally American.

Now, three American Samoans are seeking and en banc review by the U.S. Court of Appeals for the Tenth Circuit after the panel reversed the decision on Fitisemanu v. United States.

Despite being a U.S. territory since 1900, the people of American Samoa are only considered U.S. nationals. According to Equally American Fitisemanu v. United States argued that Congress does not have the power to redefine the Constitution’s guarantee of birthright citizenship to treat those born in U.S. territories as second-class Americans. The Citizenship Clause of the Fourteenth Amendment unequivocally guarantees citizenship to persons born on U.S. soil, whether born in a state, territory or the District of Columbia.

The panel's decision now puts at risk the citizenship status of more than 3.5 million Americans living in the territories since the federal government only recognizes those born in other territories as U.S. citizens by statute, according to Equally American.

“The full Tenth Circuit should review the panel’s decision both because it ignores clear Supreme Court precedent and because citizenship is the foundation of who we are as Americans," Equally American founder and President Neil Weare said. "It is absurd that John Fitisemanu is recognized as a passport-holding American, but not a U.S. citizen.”

Equally American Fitisemanu plaintiffs and advocates for equality and civil rights in U.S. territories.

The panel also grounded its ruling on an assumption that there is a “preference against citizenship” based on opposition to the case from elected officials in American Samoa and concerns that recognition of citizenship might impact cultural and political self-determination in American Samoa.

Charles Ala’ilima, an American Samoan attorney who represents the Fitisemanu plaintiffs disputed those claims.

“American Samoans are proud to be Americans and do not wish to establish any political relationship with the United States other than under the sovereignty deeded by their forefathers and represented by the U.S. flag," he said. "This sentiment is expressed by all American Samoans I have encountered in my lifetime, including those now opposing full citizenship. If that is the case then people born in American Samoa have a U.S. constitutional right to be recognized as full U.S. citizens and not this lesser status that is now assigned them at birth. Concerns that citizenship could threaten our land and culture are misplaced, and the ongoing denial of U.S. citizenship to American Samoans has real-life consequences for thousands of American Samoans every day.”

Parties supporting review of the panel’s decision by the Tenth Circuit will be filing their briefs by Aug. 6. The Tenth Circuit is likely to decide whether to grant review by the full court in the coming months.

Equally American has heard directly from more than a thousand American Samoans living both in American Samoa and throughout the 50 states who are denied recognition of citizenship and want to be recognized as citizens without having to naturalize. They have shared how being denied citizenship has made them feel, and how it has impacted their lives. Hundreds of the American Samoans we’ve heard from are denied citizenship despite distinguished military careers. You can read what they think, in their own words, at https://www.equalrightsnow.org/american_samoan_voices. Others born in American Samoa who wish to share their thoughts can take Equally American’s “Citizenship Survey” at https://www.equalrightsnow.org/citizenship_survey.