 post of Think Tech Hawaii's Law Across the Sea program. Today we're going across the sea to talk with lawyers, Charles Ala Ilima in Pango Pango, American Samoa and Michael Williams in Washington DC. Charles is the principal of Ala Ilima and Associates PC and Michael is a partner in Kirkland and Ellis LLP. Both are experienced and zealous advocates for their clients. I've asked my guests to discuss the Fitzi Manu versus United States case. Charles represents the plaintiffs in that case. Michael represents the American Samoa government in that case. The Fitzi Manu case is very interesting case. It involves American Samoa and its people. I spent time in Pango Pango, American Samoa as a young boy, American Samoa is beautiful. American Samoans have a rich cultural history and Pango Pango is a beautiful little town. However, American Samoa is a territory of the United States but American Samoans are not US citizens. I've asked my guests to discuss the Fitzi Manu case. First, welcome, Charles, Michael, good to see you both. How are you? Great to be here and thank you for having me and Michael on to discuss these issues. That's right, it's great to be here Mark and we appreciate your interest in the case. Yeah, this is a very interesting case. I'm gonna, you know, Charles you're the plaintiff's attorney. So let's start with you. I mean, who are the plaintiffs in the Fitzi Manu case? Why did they file this? And what have they alleged and what happened at the trial level and why, as I understand it came before the Supreme Court, US Supreme Court. So please, Charles, take it over. Yes, the Fitzi Manu plaintiffs are primarily Utah residents who were born in American Samoa. They filed this action because of their status as US nationals, but not US citizens. They brought the action in front of the district court in Utah in front of Judge Waldrop in which they argued that under the 14th Amendment and they are entitled to US citizenship as American Samoa is sovereign US territory in the 14th Amendment basically has the principle that if you are born on US soil, you are a US citizen. Judge Waldrop agreed. And after looking at it extensively at the history of territories, he said, yes, you are US citizens. The State Department and well, the American Samoa government intervened saying, no, we want to intervene with the US government to be able to say no, that these cases from the, call the insular cases set a standard that allowed the US to have a separate category for those people born in these island territories that were being acquired. Judge Waldrop agreed with our position. We then went up to the, the appeal then went to the 10th Circuit and the initial ruling was a split ruling, two to one, basically stating that the insular cases are acceptable and that you can have this sort of dual status situation that we have in American Samoa. And there was a very strong dissent to that two to one decision. It went to the, it went to the attempted to try to go to the full panel 10th Circuit and they then basically sided with the three panel or the two of the three panels judges. And then we made that appeal to the Supreme Court for cert to be able to review the matter. We had, when we brought these cases, we tried to narrow the focus down to just one thing, which is the 14th Amendment, clear, what we thought was absolutely clear. You're born on US sovereign territory soil, you are US citizens. We cited very strongly to the one Kim arc case and also to other historical patterns in which US territories were allowed to, or US territories were considered part of the United States. We took this then went to the Supreme Court on really a, on just that issue to try to narrow that focus down the US Supreme Court. However, decided they were not going to take the matter up to review the insular cases and the basis within. And, but we, everybody seemed to agree, I believe my judges at the appellate level seemed to agree as the insular cases have a racist underpinning, but let's repurpose it. And we thought, well, you don't repurpose this underlying racist decision, especially when the underlying racist decision kept you from being US citizens, you're going to repurpose it to continue to deny you US citizenship. So I believe that we're disappointed that the Supreme Court did not take it up. At this point in time, we just think that just condemns us to another generation of this sort of limbo relationship or this limbo status that we have here in American Samoa and for the US residents who are born in American Samoa. So that in a nutshell is what we believe. Okay, yeah. And as I understand it, then the insular cases that you refer to as the insular cases basically say that if you're born in a territory, you are what's called a US national, but you're not a US citizen. Is that a correct interpretation? I believe the US, the insular cases allowed, were interpreted to allow treatment of the people of these territories differently from people born in let's say the mainland United States and the main land territories of the United States at that time. Arguing that basically they can be treated differently and subsequent case law after the insular cases has basically upheld this idea that you can be treated differently and given a different status. I believe then basically the US government said, okay, we'll call you US nationals but not US citizens. So basically US national status means you are born on your allegiance to the United States, but you are not a US citizen. That's what it amounts to. You owe your allegiance to us as a matter of your birth. However, we do not recognize you as full citizens of the United States. Okay, now Michael is the attorney for the American Samoan government. Well, I mean, what is that government? Why is it involved in the Fetisi Manu case and what's its position with respect to the issues that were brought up and the relief that was requested by the plaintiffs in this litigation? Mark, I've got two clients in this litigation. One is the American Samoa government and the second is the Congresswoman from American Samoa. So I represent all of the people who've been elected by the people of American Samoa to represent their interests, whether it's in their territorial government at home or whether it's in the federal government in the United States Congress. I'll start with the American Samoa government. American Samoa is a territory. It's been a territory since 1900. That was when chiefs from American Samoa signed deeds of session that said, we'll agree to be part of the United States. And this history is an important part of the litigation, Mark, because American Samoa and its leaders are very proud that they are the only United States territory that wasn't taken by conquest. The American Samoans agreed to become part of the United States. They ceded some of their sovereignty to the United States in exchange for this alignment with the United States. But the American Samoan people are fiercely proud and the fact that they weren't like Cuba or like the Philippines or like Puerto Rico, they were never a subject of conquest, that's something that's very important to them. So the American Samoa government was formed in 1967 when the territory of American Samoa passed a constitution to govern the islands. Because it's an unincorporated territory, it's still nominally administered by the U.S. Department of Interior as one of the insular territories of the United States. But within that administration by the Department of Interior, there is an elected government, Governor Leimano, who's my client, elected governor. There are two houses of the Samoan legislature, which is known in Samoa as the phone home. There is a lower house that is elected by popular vote. And then there is an upper house like the United States Senate. But rather than being directly elected by the people, it's elected by chiefs according to traditional Samoan customs. So that's the American Samoan government. There are about 50,000 people in American Samoa right now, and these are the people who represent their interests in self-government. Congresswoman Amata is my other client. So Congresswoman Amata was elected during the pendency of this litigation, not the Utah version, but the DC version, which American Samoa had also won through the DC federal courts, the DC circuit courts in the United States Supreme Court. But I was initially retained, I mean, this is pro bono. So I was initially agreed to take this case with a Democratic member of Congress who represented American Samoa, named Anifalia Mavaena. And he'd reached out to me and asked if I would represent his interests in earlier litigation back in 2012. When Ani died in an untimely way, Congresswoman Amata, who was the daughter of the first native born governor of American Samoa, asked me if I'd continue. So we had a Democratic congressman who started American Samoas rights in this case, a Republican congresswoman who took over his seat. And there's been this unbroken line of agreement among whether it's Republican or Democrats, whether it's territorial officials or whether it's federal officials, there's been this unanimous agreement on the part of the American Samoan people's governments that they do not want a court to say you are now citizens of the United States. Now, why is that important? How do I know that that's the case? After Judge Waddups in Utah issued his ruling saying that American Samoans would become US citizens, the American Samoa government unanimously passed a resolution that was then signed by the governor saying we want this decision appealed. Now, I mean, I know how Hawaii politics can be, can imagine how federal politics are, you understand, for a legislative body composed of two chambers with fiercely contested elections to get together and unanimously say, this is not something we want. That's something remarkable. And that's part of the evidence that we put in front of the Supreme Court when we were telling them that they should deny review in this case. Well, that information from both of you is really eye-opening. Charles, why do the plaintiffs in the Fatisi Manu case want to be US citizens? What is driving them? What is driving them is the fact that they are treated differently. We understand that there is political resistance to citizenship down here in American Samoa. But remember, citizenship is an individual right. It belongs to the individual, not to a political party, not to a political contest. That's why we fought a civil war and that's why the 14th Amendment was fought, the Civil War was fought because they were making politics out of whether they can treat slaves as lesser people. After when the 14th Amendment was passed, it seemed absolutely clear that we are taking the issue of citizenship, the right of an individual who was born in the United States on territory of the United, sovereign soil of the United States. We're taking that out of politics. This is no longer a matter of what you want or what you don't want. It is a matter of where you were born and what you are and if you are born on sovereign soil of the United States. And remember, American Samoans don't have any other rights. They don't have rights in other countries. They are only born owing allegiance to the United States. And therefore, the fact that you have this dual status, I believe is a fundamental, is a fundamental misreading of that 14th Amendment. So I think this is where I think we have a serious issue. At the time that the de-decessions were passed and for many years after that, decades after that, Samoans thought they were citizens and they actually had a commission come down, a Senate commission come to American Samoa in the late 1920s called the Bingham Commission. And it basically heard from people who were much closer to the time of the actual session saying, we thought we were U.S. citizens. We thought that we became part of you when we deeded our sovereignty to you. But now you're telling us we're not. I think the Senate, that was a Senate committee, it was embarrassed, they came up and introduced the bill to make American Samoans citizens, which passed the Senate, but then because of some very serious racial disharmony down in the house, it didn't pass. So in the essence, basically the underpinnings of this keeping of this separateness of the island's territories and island people from full U.S. citizenship, the underpinnings were always there, they were there and they cannot be undone and they should not be continued, but that will take an action by the Supreme Court to review its case just like it did Brown versus Board of Education, reviewing Plessy versus Ferguson, interesting to note, the same judge that wrote Plessy versus Ferguson, Justice Brown, who wrote the opinion Plessy versus Ferguson also wrote this initial opinion that became the first part of the insular cases. And in both cases, the federal government, in Brown versus Board of Education overruled the Plessy versus Ferguson, separate but equal, they just have not gotten around to now doing that same type of, to reviewing the same type of thinking in the insular cases. So Michael, I hear what Charles is saying is that American Samoans who filed this Fatisi Manu case wanted equality. So why is the American Samoan government opposed to American Samoans being U.S. citizens? Am I reading that correctly? No, not at all, Mark. And I think for those who are listening to my friend Charlie describe the case, they might think American Samoan must not care about American Samoans if they don't want them to be equal. But I think there's another side of that story that's important and that I think carried the day with the courts of appeals and carried the day with the Supreme Court. That's that you can look at this as an equality issue as Charlie had said, citizenship is an individual right. And I'll get back to that in a moment. But the way that the Samoan government looks at this is that this is an essential self-determination issue. American Samoans and the American Samoa government want to determine their own status. They want to do it according to Samoan customs on a Samoan timeframe based on their own deliberative processes. And to them, it's anathema. This notion that a federal judge sitting in Salt Lake City or a federal judge sitting in Washington, DC is going to snap his fingers and say, you are now United States citizens. That's something that's offensive to the people of American Samoa. And there are two reasons why that's offensive. The first part is, and this is something that a great judge in the DC Court of Appeals had pointed out during the first round of litigation that American Samoa had won against the plaintiffs in this case, citizenship isn't just privileges and benefits, citizen is also obligations. There's anybody who's ever seen a naturalization ceremony knows the oath that people who take that oath of citizenship say. And there's a lot of obligations that come with citizenship that American Samoans have decided they don't want foisted upon them. Because if American Samoans are going to take on citizenship, they want to be the ones to say to the United States government the Congress that has extended citizenship to the other territories, they want to say, we want this now. Now, the second half of that, in addition to the self-determination issue, is there's a real concern among American Samoan people that if you can change something as fundamental as their status, whether they consider themselves Samoans or whether they consider themselves United States citizens, with a snap of a finger, a judge in Salt Lake City or Washington DC can change that, what else can the courts do to American Samoan culture? Now, when those chiefs signed the deeds of session, when American Samoa enacted its constitution in 1967, one of the fundamental prerequisites of strengthening this relationship with the United States was a guarantee that the United States would protect the traditional Samoan ways of life. And those involve things like land and the tie of families to land, the ties of chiefly titles to land, the communal ownership of land and that this land remained held to the greatest extent possible by American Samoans. And Samoans looked at what happened in Hawaii, looked at what happened in other territories where we have Hawaiians who live on the beach and we have a Hawaiian birthright list of property where American Samoans say we wanna take steps to make sure that this land remains with American Samoans with Samoans in perpetuity. There are other aspects of American Samoan culture, mandatory prayer curfews. The idea that the upper house of their legislature is elected by traditional family chiefs rather than by popular sovereignty. American Samoan culture is a vibrant dynamic culture that is thousands of years old. And it only exists in Samoa. And the American Samoan people are worried that if you start making changes through the courts, not letting the Samoans decide but filing lawsuits and going to judges and saying we want this change, what else is gonna be on the table? Now, the American Samoan government and the Congresswoman are very sensitive to what my friend Charlie said at the start when he said citizenship is a fundamental right. And that's why American Samoan nationals have a glide path to United States citizenship. That is, they don't need a green card. They can travel throughout the country on a US passport. They can serve in the military and many proudly do per capita in a number that outshines any other territory, any other US state. But the Congresswoman from American Samoa has recently pushed for even stronger litigation. That would mean that if you're an individual American Samoan and you want citizenship, all you have to do is go for it. That is, you won't have a residency requirement. You don't have to, all of the burdens that we usually impose on people getting a green card for coming to the United States, the Congresswoman from American Samoa are working with the American Samoan government or working to do away with those. So individual Samoans can say, I wanna be a US citizen without upsetting the self-determination rights of the American Samoan people as a whole. We've always viewed that as the real answer mark. And I'll add to that as a lawyer for the American Samoan government, as a lawyer for the Congresswoman. If I found out that a government was discriminating against Samoans because they were nationals and not US citizens on any ground, I'd like to challenge that legislation. We know that American Samoan people are people who owe allegiance to the United States. If there's discrimination because they say that they're a national rather than a citizen on any issue, whether it's the First Amendment, Second Amendment, military service, eligibility for government jobs, that's the sort of invidious discrimination that we should be challenging. I'd happily bring those lawsuits if they ever came to my attention. So the way that the American Samoan government sees this is we have a system that we might change at some point, but we wanna be the ones to change it on our own time. And we don't want litigation mucking this up. So, you know, both of you have put really strong cases. I mean, this is not easy to make a decision. I can see why judges might have a hard time, but I mean, Charles, you're talking about, we want equality and Michael talks about self-determination. Now, Charles, I mean, do you understand that as a realistic opposition to the case? And I mean, Michael proposed or suggested a way to resolve it. What do you think about that? Okay, let's talk number one with respect to discrimination. US nationals cannot be officers in the United States government. They can be enlisted men, they cannot be officers. The military just sent around a notice when they suddenly found out that a number of officers were actually US nationals sending around a notice. Everybody who wants to maintain their officer status have to turn into US citizens. That's number one. Number two, this idea that somehow citizenship and nationality affect culture. I've been in and legal rights with respect to defending cultural values. I've been a lawyer here for 40 years. I've been a judge here over 40 years. I am the person to whom chiefs come to defend their rights to land because they understand that I have a fairly good background in this area. And it's got nothing to do with citizenship. I've got people coming to me who were born in the States who are living down here now. They just happened to have been born in the States. They're US citizens. And nobody ever challenges their cultural rights. The congresswoman herself is a US citizen. So I don't even think they keep track of who's a citizen and who isn't of the American Samoans that are down here. The idea that somehow nationality and US citizenship affect your custom and culture, that's a kind of a red herring because there isn't anything with respect to discriminating down here. We don't discriminate against a Samoan, American Samoan who comes down here who is a US citizen. I haven't been discriminated against and I'm a US citizen. And I'm a US citizen because my mother happened to be a US citizen when I was born. I was born here in the American Samoan. The kid born right next to me, same day, same time is somehow now different from me because he's not, you know, because he's a US native because his parents just happened not to be US citizens. The idea of protecting custom and culture is not something that your nationality determines. It is how you defend it. And I've been defending custom and culture down here for the last 40 years. And the US government has recognized that there is an obligation to protect custom and culture and it's not gonna matter whether you're a US citizen or a US national. And the US national status is a second class status. When I was having a forum with the Attorney General who was now the Lieutenant Governor, he says, we want to accept the second class status because we're worried about what might happen to our culture. But nobody has ever come to show me what exactly is it about being the difference between a US national and a US citizen that is affecting your ability to do custom and culture. They can't do it. They can only say some sort of, we don't wanna be like Hawaiians. We don't wanna be like the Hawaiians or somebody else. Hawaiians live during a different time in a different era. We are in this era, we still control our lands. We still control our customs. We can identify with the US government and be able to be part of that system. We think the federal system, the constitutional system is broad enough to be able to encompass the kind of ideas of chiefs. We have chiefs in America that calls chief executive officers and other types of things that we give rights to under laws of corporate rights. And that's how I argue down here with chiefs down here. The argument before the court, the chief is a trustee of family lands. It's nothing that's not an anathema to the constitution that chiefs who are selected by their families, right, have trust control of family lands. There's nothing wrong in the constitution about that. The chiefs themselves sit in council and they select people that will go to represent them or their villages and their families in the Senate. There's nothing inherently unconstitutional about the system. If you don't, if you, I think what people get a mistake in with chiefs, they think, oh, this is hereditary chiefs like Kings to, it's not like that. That's not what the Fasamo is about. Fasamo is all about large families getting together, collectively choosing a chief who will be administer, who will administer their family lands, trusts. You know, both of you have given me a lot of knowledge and insight into this case and also Samoan, American Samoan culture. And I mean, there's a lot more to talk about, but we only have about a couple of minutes left, gentlemen. The time has gone fast. I'd like to ask you each, you know, you have this opportunity to talk to opposing council, you know, Michael, what would you want to say to your opposing council at this stage of the litigation? Well, so I guess I have to answer this on two levels. Mark first, with Charlie, because he's a friend and he's somebody who I recognize as being very learned in the law and somebody whom I trust and admire. I mean, it's just good that this litigation is over because I felt as if we weren't speaking as much while the litigation was pending. But on behalf of my clients, what I want to say is, I hope this litigation really is over. What Charlie didn't mention was these plaintiffs brought this lawsuit in 2012 and we defeated it in the federal courts in DC. We took it up to the U.S. Court of Appeals to the DC Circuit and up to the Supreme Court. And at the time, they hired one of the best Supreme Court lawyers in the country to represent them and we still beat them. Then they tried again in Utah and they found a judge in Salt Lake City that was willing to grant their request. And then we got him reversed on appeal and there we've taken it up to the Supreme Court and won again. So Congresswoman Amata published a letter to the editor in the Samoa News just today. And what she said is, it's not that we oppose citizenship. We just want American Samoa to decide. The American Samoan people are having constitutional conventions right now as we speak. And this is a live issue for them. So what I'd say on behalf of my clients, not on behalf of myself to Charlie is, I hope this is the end of the litigation and we can start channeling our efforts more productively to things like striking down discriminatory regulations or statutes. And especially for Charlie, who's such a knowledgeable person on these issues, working within the American Samoan system to help decide to discern what their status should be. Okay, thank you, Charles. What would you like to say to your opposing counsel, Michael, in this case? Well, Mike, I do look forward to being able to go over there without having to rush off and having a dinner with you when I do get to DC. However, on this issue of fundamental rights, as I had stated before, fundamental rights are to the individual and to the United States Constitution. If the United States is intending to be true to their Constitution, they should be broad enough to be able to accept the cultural differences that show up in the various peoples that are in the United States. And the US Constitution should be broad enough to accept different practices by different people and how they choose their lifestyle and how they live. And I think that is important. The key, however, here is that the issue of whether or not you can treat people as second-class as a different from a full US citizenship has already been decided by America. This is their fundamental moral obligation to individuals. Give them the choices. I'm very glad to work with Mike and dealing with any specific issues that arise that appear to be discriminatory. But I think this issue of constitutional citizenship has already been decided. And it's been decided as a fundamental matter for the United States and the Supreme Court hasn't, the Supreme Court refused to take the issue up. It's not that they want, it's that they have refused to review it. It's not that they've won or lost. We've just now maintained this limbo status of whether or not we can treat people of the territories differently. Well, I wanna thank both of you for being my guests today, Charles and Michael. And I'm glad you talked to each other and you seem to still be friendly to each other. And maybe the next dinner you have together, that conversation is gonna be very interesting too. So gentlemen, thank you very much. We'll see where this goes. And as we say here, aloha. And I think in Samoa, you say tofa. As aloha and tofa. Thank you so much for watching Think Tech Hawaii. If you like what we do, please like us and click the subscribe button on YouTube and the follow button on Vimeo. You can also follow us on Facebook, Instagram, Twitter and LinkedIn and donate to us at thinktechhawaii.com. Mahalo.