BROWN, Circuit Judge:
In our constitutional republic, Justice Brandeis observed, the title of citizen is superior to the title of President. Thus, the questions "[w]ho is the citizen[?]" and "what is the meaning of the term?" Aristotle, Politics bk. 3, reprinted in part in READINGS IN POLITICAL PHILOSOPHY 55, 61 (Francis W. Coker ed., 1938), are no less than the questions of "who constitutes the sovereign state?" and "what is the meaning of statehood as an association?" We are called upon to resolve one narrow circumstance implicating these weighty inquiries. Appellants are individuals born in the United States territory of American Samoa. Statutorily deemed "non-citizen nationals" at birth, they argue the Fourteenth Amendment's Citizenship Clause affords them citizenship by dint of birthright. They are opposed not merely by the United States but by the democratically elected government of the American Samoan people. We sympathize with Appellants' individual plights, apparently more freighted with duty and sacrifice
The South Pacific islands of American Samoa have been a United States territory since 1900, when the traditional leaders of the Samoan Islands of Tutuila and Aunu'u voluntarily ceded their sovereign authority to the United States Government. See Instrument of Cession by the Chiefs of Tutuila Islands to United States Government, U.S.-Tutuila, Apr. 17, 1900. Today the American Samoan territory is partially self-governed, possessing a popularly elected bicameral legislature and similarly elected governor.
Unlike those born in the United States' other current territorial possessions — who are statutorily deemed American citizens at birth — section 308(1) of the Immigration and Nationality Act of 1952 designates persons born in American Samoa as non-citizen nationals.
The Citizenship Clause of the Fourteenth Amendment provides that "[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." U.S. CONST. amend. XIV, § 1, cl. 1. Both Appellants and the United States government
Appellants rely on a comparison of the first and second clauses of the Fourteenth Amendment — the Citizenship and Apportionment Clauses, respectively. They argue the former is framed expansively through use of the overarching term "in the United States," U.S. CONST. AMEND. XIV, § 1, cl. 1, while the latter speaks narrowly in terms of apportionment of representatives "among the several States," U.S. CONST. AMEND. XIV, § 1, cl. 2 (emphasis added). In contrast, the Appellees look to differences between the Thirteenth and Fourteenth Amendment.
Neither argument is fully persuasive, nor does it squarely resolve the meaning of the ambiguous phrase "in the United States." The text and structure alone are insufficient to divine the Citizenship Clause's geographic scope. The difference between the Citizenship and Apportionment Clauses could suggest the former has a broader reach than the latter. See United States v. Diaz-Guerrero, 132 Fed.Appx. 739, 740-41 (9th Cir.2005) ("It is a well-established canon of statutory interpretation that the use of different words or terms within a statute demonstrates ... [intent] to convey a different meaning for those words ...."). But, even if this is the case, Appellants' argument does not resolve the question at issue because both text and structure are silent as to the precise contours of the "United States" under the Citizenship Clause. Even if "United States" is broader than "among the several States," it remains ambiguous whether territories situated like American Samoa are "within" the United States for purposes of the clause. The Government's argument is similarly incomplete. While the language of the Thirteenth Amendment may be broader than that found in the Citizenship Clause, this comparison yields no dispositive insight as to whether
Appellants rely on scattered statements from the legislative history to bolster their textual argument. See, e.g., CONG. GLOBE, 39TH CONG., 1ST SESS. 2890, 2894 (1866) ("[The Citizenship Clause] refers to persons everywhere, whether in the States, or in the Territories or in the District of Columbia.") (statement of Sen. Trumbull). "[T]he legislative history of the Fourteenth Amendment ... like most other legislative history, contains many statements from which conflicting inferences can be drawn...." Afroyim v. Rusk, 387 U.S. 253, 267, 87 S.Ct. 1660, 18 L.Ed.2d 757 (1967). Here, and as a general matter, "[i]solated statements ... are not impressive legislative history." Garcia v. United States, 469 U.S. 70, 78, 105 S.Ct. 479, 83 L.Ed.2d 472 (1984).
Appellants and Amici Curiae further contend the Citizenship Clause must — under Supreme Court precedent — be read in light of the common law tradition of jus soli or "the right of the soil." See United States v. Wong Kim Ark, 169 U.S. 649, 654, 18 S.Ct. 456, 42 L.Ed. 890 (1898) ("The constitution nowhere defines the meaning of ... [the word "citizen"], either by way of inclusion or of exclusion, except in so far as this is done by the affirmative declaration that `all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.' In this, as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the constitution.") (internal citation omitted).
The doctrine of jus soli is an inheritance from the English common law. Those born "within the King's domain" and "within the obedience or ligeance of the King" were subjects of the King, or "citizens" in modern parlance. See Calvin's Case, 77 Eng. Rep. 377, 399 (1608). The domain of the King was defined broadly. It extended beyond the British Isles to include, for example, persons born in the American colonies. Inglis v. Trustees of Sailor's Snug Harbor, 28 U.S. (3 Pet.) 99, 120-21, 7 L.Ed. 617 (1830).
After independence the former colonies continued to look to the English common law rule. See, e.g., id. at 164-65. Following the Constitution's ratification the principal exception to jus soli was for African Americans born in the United States, see Dred Scott v. Sanford, 60 U.S. (19 How.) 393, 404-05, 15 L.Ed. 691 (1857); an exception necessarily repudiated with the ratification of the Fourteenth Amendment.
We are unconvinced, however, that Wong Kim Ark reflects the constitutional codification of the common law rule as applied to outlying territories. As the
And even assuming the framers intended the Citizenship Clause to constitutionally codify jus soli principles, birthright citizenship does not simply follow the flag. Since its conception jus soli has incorporated a requirement of allegiance to the sovereign. To the extent jus soli is adopted into the Fourteenth Amendment, the concept of allegiance is manifested by the Citizenship Clause's mandate that birthright citizens not merely be born within the territorial boundaries of the United States but also "subject to the jurisdiction thereof," U.S. CONST. amend. XIV, § 1, cl. 1; see Wong Kim Ark, 169 U.S. at 655, 18 S.Ct. 456 ("The principle embraced all persons born within the king's allegiance, and subject to his protection.... Children, born in England, of  aliens, were  natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the king's dominions, were not natural-born subjects, because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the king.").
Appellants would find any allegiance requirement of no moment because, as non-citizen nationals, American Samoans already "owe permanent allegiance to the United States." 8 U.S.C. § 1101(a)(22); see also Sailor's Snug Harbor, 28 U.S. at 155 ("[A]llegiance is nothing more than the tie or duty of obedience of a subject to the sovereign under whose protection he is; and allegiance by birth, is that which arises from being born within the dominions and under the protection of a particular sovereign."). Yet, within the context of the Citizenship Clause, "[t]he evident meaning of the  ... words ["subject to the jurisdiction thereof"] is, not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance." Elk v. Wilkins, 112 U.S. 94, 102, 5 S.Ct. 41, 28 L.Ed. 643 (1884)
Analysis of the Citizenship Clause's application to American Samoa would be incomplete absent invocation of the sometimes contentious Insular Cases, where the Supreme Court "addressed whether the Constitution, by its own force, applies in any territory that is not a State." Boumediene v. Bush, 553 U.S. 723, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008). See also King v. Morton, 520 F.2d 1140, 1153 (D.C.Cir.1975) ("The Insular Cases, in the manner in which the results were reached, the incongruity of the results, and the variety of inconsistent views expressed by the different members of the court, are, I believe, without parallel in our judicial history.").
"The doctrine of `territorial incorporation' announced in the Insular Cases distinguishes between incorporated territories, which are intended for statehood from the time of acquisition and in which the entire Constitution applies ex proprio vigore, and unincorporated territories [such as American Samoa], which are not intended for statehood and in which only [certain] fundamental constitutional rights apply by their own force." Commonwealth of N. Mariana Islands v. Atalig, 723 F.2d 682, 688 (9th Cir.1984).
Appellants and Amici contend the Insular Cases have no application because the Citizenship Clause textually defines its own scope. See Examining Bd. of Engineers, Architects & Surveyors v. Flores de Otero, 426 U.S. 572, 590 n. 21, 96 S.Ct. 2264, 49 L.Ed.2d 65 (1976) ("[T]he Court in Dorr v. United States, 195 U.S. 138, 143, 24 S.Ct. 808, 49 L.Ed. 128 (1904) ... [held] that the Constitution, except insofar as required by its own terms, did not extend to the Philippines.") (emphasis added). We conclude the scope of the Citizenship Clause, as applied to territories, may not be readily discerned from the plain text or other indicia of the framers' intent, absent resort to the Insular Cases' analytical framework. See Boumediene, 553 U.S. at 726, 128 S.Ct. 2229 (While the "Constitution has independent force in the territories that [is] not contingent upon acts of legislative grace[,] ... because of the difficulties and disruptions inherent in transforming... [unincorporated territories] into an Anglo-American system, the Court adopted the doctrine of territorial incorporation,
Amici Curiae suggest territorial incorporation doctrine should not be expanded to the Citizenship Clause because the doctrine rests on anachronistic views of race and imperialism. But the Court has continued to invoke the Insular framework when dealing with questions of territorial and extraterritorial application. See id. at 756-64, 128 S.Ct. 2229. Although some aspects of the Insular Cases' analysis may now be deemed politically incorrect, the framework remains both applicable and of pragmatic use in assessing the applicability of rights to unincorporated territories. See id. at 758-59, 128 S.Ct. 2229 ("[T]he Court devised in the Insular Cases a doctrine that allowed it to use its power sparingly and where it would be most needed" in recognition of the "inherent practical difficulties of enforcing all constitutional provisions always and everywhere."). See also Balzac v. Porto Rico, 258 U.S. 298, 312, 42 S.Ct. 343, 66 L.Ed. 627 (1922) ("The Constitution ... contains grants of power, and limitations which in the nature of things are not always and everywhere applicable and the real issue in the Insular Cases [is] ... which  of [the Constitution's] provisions [a]re applicable by way of limitation upon the exercise of executive and legislative power in dealing with new conditions and requirements" arising in the territorial context).
As the Supreme Court in Boumediene emphasized, the "common thread uniting the Insular Cases ... [is that] questions of extraterritoriality turn on objective factors and practical concerns, not formalism." 553 U.S. at 764, 128 S.Ct. 2229. While "fundamental limitations in favor of personal rights" remain guaranteed to persons born in the unincorporated territories, id. at 758, 128 S.Ct. 2229 (quoting Late Corp. of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1, 44, 10 S.Ct. 792, 34 L.Ed. 478 (1890)), the Insular framework recognizes the difficulties that frequently inure when "determin[ing] [whether a] particular provision of the Constitution is applicable," absent inquiry into the impractical or anomalous. See id.; see also Downes, 182 U.S. at 292, 21 S.Ct. 770 (White, J., concurring) ("[T]he determination of what particular provision of the Constitution is applicable, generally speaking, in all cases, involves an inquiry into the situation of the territory and its relations to the United States.").
American citizenship "is one of the most valuable rights in the world today." Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963). "The freedoms and opportunities secured by United States citizenship long have been treasured by persons fortunate enough to be born with them, and are yearned for by countless less fortunate." Fedorenko v. United States, 449 U.S. 490, 522, 101 S.Ct. 737, 66 L.Ed.2d 686 (1981). Accordingly, even if the Insular framework is applicable, Appellants cite to a bevy of cases to argue citizenship is a fundamental right. See, e.g., Afroyim v. Rusk, 387 U.S. 253, 87 S.Ct. 1660, 18 L.Ed.2d 757 (1967); Schneider v. Rusk, 377 U.S. 163, 84 S.Ct. 1187, 12 L.Ed.2d 218 (1964); Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963); Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (plurality op.). But those cases do not arise in the territorial context. Such decisions do not reflect the Court's considered judgment as to the existence of a fundamental right to citizenship for persons born in the United States' unincorporated
"Fundamental" has a distinct and narrow meaning in the context of territorial rights. It is not sufficient that a right be considered fundamentally important in a colloquial sense or even that a right be "necessary to [the] American regime of ordered liberty." Wabol v. Villacrusis, 958 F.2d 1450, 1460 (9th Cir.1990) (quoting Duncan v. Louisiana, 391 U.S. 145, 149 n. 14, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968)). Under the Insular framework the designation of fundamental extends only to the narrow category of rights and "principles which are the basis of all free government." Dorr v. United States, 195 U.S. 138, 147, 24 S.Ct. 808, 49 L.Ed. 128 (1904) (emphasis added); Downes, 182 U.S. at 283, 21 S.Ct. 770 ("Whatever may be finally decided by the American people as to the status of these islands and their inhabitants... they are entitled under the principles of the Constitution to be protected in life, liberty, and property ... even [if they are] not possessed of the political rights of citizens of the United States.").
In this manner the Insular Cases distinguish as universally fundamental those rights so basic as to be integral to free and fair society. In contrast, we consider non-fundamental those artificial, procedural, or remedial rights that — justly revered though they may be — are nonetheless idiosyncratic to the American social compact or to the Anglo-American tradition of jurisprudence. E.g., Balzac, 258 U.S. 298, 42 S.Ct. 343 (constitutional right to a jury trial does not extend to unincorporated territories as a fundamental right); see also Downes, 182 U.S. at 282, 21 S.Ct. 770 ("We suggest, without intending to decide, that there may be a distinction between certain natural rights enforced in the Constitution by prohibitions against interference with them, and what may be termed artificial or remedial rights which are peculiar to our own system of jurisprudence.").
We are unconvinced a right to be designated a citizen at birth under the jus soli tradition, rather than a non-citizen national, is a "sine qua non for `free government'" or otherwise fundamental under the Insular Cases' constricted understanding of the term. Corp. of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Hodel, 830 F.2d 374, 386 n. 72 (D.C.Cir.1987). Regardless of its independently controlling force, we therefore adopt the conclusion of Justice Brown's dictum in his judgment for the Court in Downes. See 182 U.S. at 282-83, 21 S.Ct. 770. "Citizenship by birth within the sovereign's domain [may be] a cornerstone of [the Anglo-American] common law tradition," Brief for Petitioner-Appellant at 48, Tuaua v. United States, No. 135272 (D.C.Cir. April 25, 2014), but numerous free and democratic societies principally follow jus sanguinis — "right of the blood" — where birthright citizenship is based upon nationality of a child's parents.
In states following a jus sanguinis tradition birth in the sovereign's domain — whether in an outlying territory, colony, or the country proper — is simply irrelevant to the question of citizenship. Nor is the asserted right so natural and intrinsic to the human condition as could not warrant transgression in civil society. See generally Dorr, 195 U.S. at 147, 24 S.Ct. 808. "[C]itizenship has no meaning in the absence of difference." Peter J. Spiro, The Impossibility of Citizenship, 101 MICH. L.REV. 1492, 1509 (2003). The means by which free and fair societies may elect to ascribe the classification of citizen must accommodate variation where consistent with respect for other, inherent and inalienable, rights of persons. To find a natural right to jus soli birthright citizenship would give umbrage to the liberty of free people to govern the terms of association within the social compact underlying formation of a sovereign state. Cf. Aristotle, Politics bk. 3, reprinted in part in READINGS IN POLITICAL PHILOSOPHY 55, 87 (Francis W. Coker ed., 1938) ("The basis of a democratic state is liberty; which, according to the common opinion of men, can only be enjoyed in such a state[.]").
The absence of a fundamental territorial right to jus soli birthright citizenship does not end our inquiry. "The decision in the present case does not depend on key words such as `fundamental' or `unincorporated territory[,]' ... but can be reached only by applying the principles of the [Insular] [C]ases, as controlled by their respective contexts, to the situation as it exists in American Samoa today." King, 520 F.2d at 1147. Cf. Boumediene, 553 U.S. at 758, 128 S.Ct. 2229 ("It may well be that over time the ties between the United States and any of its unincorporated Territories strengthen in ways that are of constitutional significance."). "[T]he question is which guarantees of the Constitution should apply in view of the particular circumstances, the practical necessities, and the possible alternatives which Congress had before it." Reid, 354 U.S. at 75, 77 S.Ct. 1222. In sum, we must ask whether the circumstances are such that recognition of the right to birthright citizenship would prove "impracticable and anomalous," as applied to contemporary American Samoa. Id. at 74, 77 S.Ct. 1222.
Despite American Samoa's lengthy relationship with the United States, the American Samoan people have not formed a collective consensus in favor of United States citizenship. In part this reluctance stems from unique kinship practices and social structures inherent to the traditional Samoan way of life, including those related to the Samoan system of communal land ownership. Traditionally aiga (extended families) "communally own virtually all Samoan land, [and] the matais [chiefs] have authority over which family members work what family land and where the nuclear families within the extended family will live." King, 520 F.2d at 1159. Extended
Representatives of the American Samoan people have long expressed concern that the extension of United States citizenship to the territory could potentially undermine these aspects of the Samoan way of life. For example Congressman Faleomavaega and the American Samoan Government posit the extension of citizenship could result in greater scrutiny under the Equal Protection Clause of the Fourteenth Amendment, imperiling American Samoa's traditional, racially-based land alienation rules. Appellants contest the probable danger citizenship poses to American Samoa's customs and cultural mores.
The resolution of this dispute would likely require delving into the particulars of American Samoa's present legal and cultural structures to an extent ill-suited to the limited factual record before us. See King, 520 F.2d at 1147 ("The importance of the constitutional right at stake makes it essential that a decision in this case rest on a solid understanding of the present legal and cultural development of American Samoa. That understanding cannot be based on unsubstantiated opinion; it must be based on facts."). We need not rest on such issues or otherwise speculate on the relative merits of the American Samoan Government's Equal Protection concerns. The imposition of citizenship on the American Samoan territory is impractical and anomalous at a more fundamental level.
We hold it anomalous to impose citizenship over the objections of the American Samoan people themselves, as expressed through their democratically elected representatives.
Citizenship is not the sum of its benefits. It is no less than the adoption or ascription of an identity, that of "citizen" to a particular sovereign state, and a ratification of those mores necessary and intrinsic to association as a full functioning component of that sovereignty. See Minor v. Happersett, 88 U.S. (21 Wall.) 162, 165-66, 22 L.Ed. 627 (1874) ("There cannot be a nation without a people. The very idea of a political community, such as a nation is, implies an association of persons for the promotion of their general welfare. Each one of the persons associated becomes a member of the nation formed by the association."). At base Appellants ask that we forcibly impose a compact of citizenship — with its concomitant rights, obligations, and implications for cultural identity
We can envision little that is more anomalous, under modern standards, than the forcible imposition of citizenship against the majoritarian will.
For the foregoing reasons the district court is