8 FAM 302.5

Acquisition by Birth in American Samoa and Swains Island

(CT:CITZ-1;   06-27-2018)
(Office of Origin: CA/PPT/S/A)

8 FAM 302.5-1  Current Law

(CT:CITZ-1;   06-27-2018)

a. As defined in section 101(a)(29) INA, the term "outlying possession" of the United States applies only to American Samoa and Swains Island.

b. American Samoa and Swains Island are not incorporated territories, and the citizenship provisions of the Constitution do not apply to persons born there.

c.  Section 301(e) Immigration and Nationality Act (INA) provides for acquisition of U.S. citizenship by birth in outlying possessions to one U.S. citizen parent who has been physically present in the United States or one of its outlying possessions for a continuous period of one year at any time prior to the birth of such person.  Section 309 INA made section 301(e) applicable to children born out of wedlock under certain conditions (see 7 FAM 1133.4).

d. Section 308(1) and (3) INA provides non-citizen U.S. nationality for the people born (or foundlings) in American Samoa and Swains Island (see 7 FAM 1121.4-2 for text of sec 308 (1) and (3) INA).

e. By its wording, section 308(1) INA is retroactive, effectively granting U.S. non-citizen nationality status to anyone born in American Samoa or Swains Island after annexation (February 16, 1900 for American Samoa and March 4, 1925 for Swains Island) and before December 24, 1952, who did not acquire non-citizen U.S. nationality at the time of birth.

8 FAM 302.5-2  Nationality Status of Inhabitants After Annexation

(CT:CITZ-1;   06-27-2018)

a. American Samoa was ceded to the United States by a treaty entered into by the United States, Germany, and Great Britain dated December 2, 1899, and ratified February 16, 1900.  The treaty did not address the issue of the nationality of the people living on those islands.

b. On February 16, 1900, the date of annexation:

(1)  People living in American Samoa who formerly owed allegiance to Germany or Great Britain became non-citizen U.S. nationals, unless they exercised their right to retain their former nationality by removal from American Samoa or otherwise; and

(2)  The native inhabitants of American Samoa who belonged to a race indigenous to those islands also became non-citizen U.S. nationals.

NOTE:  The same ethnic groups lived on other nearby islands, including Western Samoa, but only those born on the islands that became American Samoa could benefit from the terms of the treaty.

c.  The joint resolution of March 4, 1925, pertaining to Swains Island stated that:

Whereas Swains Island ... is included in the list of guano islands appertaining to the United States, which have been bonded under the Act of Congress approved August 18, 1856;

Whereas the island has been in the continuous possession of American citizens for over fifty years and no form of government therefore or for the inhabitants thereof has been provided by the United States; and

Therefore, be it resolved by the Senate and House of Representatives of the United States of America in Congress assembled, that sovereignty of the United States over American Samoa is hereby extended over Swains Island, which is made a part of American Samoa.

d. Native inhabitants of Swains Island of a race indigenous to that island who were not already U.S. citizens or nationals became non-citizen U.S. nationals if residing in Swains Island on March 4, 1925.