8 FAM 302
(U) Special Citizenship Provisions

8 FAM 302.1

Historical Background to Acquisition by Birth in U.S. Territories and Possessions

(CT:CITZ-35;   05-15-2020)
(Office of Origin:  CA/PPT/S/A)

8 FAM 302.1-1  How Territories and Possessions Were Acquired

(CT:CITZ-35;   05-15-2020)

a. In the late 19th and early 20th centuries, U.S. sovereignty was extended to overseas territories.  These territories (unlike those of the western United States, Alaska, and Hawaii) were not considered a part of the United States, and the Constitution was held not to be fully applicable to them.

b. The territories came under U.S. control in a number of ways:

(1)  Puerto Rico, Guam, and the Philippines.  After the Spanish-American War, Spain ceded Puerto Rico, Guam, and the Philippines to the United States by the Treaty of Paris of 1899 (30 Stat. 1754) ("Treaty of Paris").  The treaty came into force in April 11, 1899.  The Philippines ceased being a U.S. territory upon its independence on July 4, 1946 (see 8 FAM 302.5); the non-citizen U.S. nationality of persons born in the Philippines was automatically terminated upon the grant of independence July 4, 1946 (see 8 FAM 308.6);

(2)  American Samoa.  In a Tripartite Convention (31 Stat. 1878) ratified on February 16, 1900, Great Britain and Germany ceded American Samoa to the United States;

(3)  Panama Canal Zone.  The Republic of Panama, by a Convention that became effective on February 26, 1904, granted the United States sovereignty over an area of about five miles on either side of a canal that was to be built across the Isthmus of Panama to connect the Atlantic and Pacific Oceans.  U.S. sovereignty over the Panama Canal Zone ended on October 1, 1979 in accordance with the Panama Canal Treaty (TIAS 10030);

(4)  Virgin Islands of the United States.  The Virgin Islands of the United States, formerly the Danish West Indies, were purchased from Denmark pursuant to a Convention ratified on January 17, 1917;

(5)  Swains Island.  On March 4, 1925, by joint resolution, Congress proclaimed American sovereignty over Swains Island, which had been the private possession of an American family for about 50 years, and made it part of American Samoa; and

(6)  Northern Mariana Islands.  These islands, which were part of a U.N. Trusteeship Territory since 1947, became a territory of the United States on November 3, 1986, when The Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America (Public Law 94-241. 90 Stat. 263)("Covenant") of March 24, 1976, entered fully into force.  All the islands formerly under the Trusteeship, which was known as the Trust Territory of the Pacific Islands (TTPI), have assumed new political status and the TTPI no longer exists.

c.  Treaties, conventions, and proclamations concerning these areas provided for the nationality or citizenship of certain of the inhabitants, but none of the provisions was very specific.  Questions arose almost immediately about the status and rights of the inhabitants and the relationship of the newly acquired territories to the United States.

8 FAM 302.1-2  Status of Inhabitants of Territories, Absent Laws Defining Status

(CT:CITZ-35;   05-15-2020)

a. Eventually, Congress enacted laws defining the relationship of the unincorporated overseas territories to the United States and the citizenship and nationality status of their inhabitants.

b. Before the Nationality Act of 1940 and absent laws specifying how U.S. citizenship could be acquired by persons born in a particular territory, children born in a U.S. possession could acquire U.S. citizenship under the laws governing birth abroad if the citizen parent was qualified to transmit U.S. citizenship.

8 FAM 302.1-3  Definition of the UnIted States and of Outlying Possessions

(CT:CITZ-35;   05-15-2020)

a. Under the NA (effective January 13, 1941 to December 24, 1952):

(1)  Puerto Rico and the U.S. Virgin Islands came within the definition of "United States" for nationality purposes, but they were not made incorporated territories; and

(2)  Other territories under U.S. jurisdiction at that time, except the Panama Canal Zone, were held to be outlying possessions of the United States.

b. Under the INA (effective December 24, 1952 to present), the definition of:

(1)  "United States," for nationality purposes, was expanded to add Guam; and, effective November 3, 1986, the Commonwealth of the Northern Mariana Islands (see 8 FAM 302.6) (in addition to Puerto Rico and the Virgin Islands of the United States).  Persons born in these territories on or after December 24, 1952 acquire U.S. citizenship at birth on the same terms as persons born in other parts of the United States; and

(2)  "Outlying possessions of the United States" was restricted to American Samoa and Swains Island.

8 FAM 302.1-4  Status of Inhabitants of Territories Not Mentioned in the Immigration and Nationality Act (INA)

(CT:CITZ-35;   05-15-2020)

T5 sovereignty over a few territories besides those mentioned above.  Under international law and Supreme Court dicta, inhabitants of those territories, (Midway, Wake, Johnston, and other islands) would be considered non-citizen U.S. nationals.  However, because the INA defines "outlying possessions of the United States" as only American Samoa and Swains Island, there is no current law specifically relating to the nationality of the inhabitants of those territories or persons born there who have not acquired U.S. nationality by other means.

(1)  Midway:

(a)  Until Hawaii became a state, births occurring on Midway Island were registered as part of the vital records of the Territory of Hawaii because the Organic Act described Midway as part of the territory.  The Statehood Act of 1958 excludes Midway Island as part of the State of Hawaii;

(b)  There are no provisions in the Hawaii Revised Statutes regarding the filing of Midway births.  However, prior to April 1, 1976, vital records were filed with the State of Hawaii.  The filing of these births was based mainly on opinions of the Attorney General and agreement between the state and the U.S. military; and

(c)  Since April 1, 1976 the Hawaii Health Department has stopped recording Midway births.  Vital records were filed on a courtesy basis, though they are kept in a separate file and not included with the state vital records.

(2)  Vital events for Wake Island were filed with the Hawaii Health Department on a courtesy basis from November 1951 to March 1962.  All vital records for this period were transferred to the Federal Aviation Administration office in Honolulu when Wake Island was taken over by a civilian administration.  Duplicate copies of vital events are kept by the Hawaii Health Department.

NOTE:  A Hawaii birth certificate for someone born on Midway or Wake Island is not sufficient evidence of U.S. citizenship by itself.  The only way for such a person to claim U.S. citizenship at birth is through INA 301(c), INA 301(g), or INA 309.