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.